Part 4	Reparation

Kooris Come in All Colours

I know I’m a Koori
I’ve learned from my kin
but sometimes I’m questioned
on the colour of my skin.

I’m questioned on this by
both black and white
my culture and identity
are my legal right.

My Aboriginality
I’ve searched for, so long
but doubts of others
make it hard to belong.

If you wouldn’t make judgements
on just what you see
then maybe by chance you’ll see the real me.

Carol Kendall

13		Grounds for Reparation
Lots of white kids do get taken away, but that’s for a reason – not like us. We just got taken away because we was black kids, I suppose – half-caste kids. If they wouldn’t like it, they shouldn’t do it to Aboriginal families.
Confidential evidence 357, South Australia.

The Inquiry’s third term of reference requires an examination of ‘the principles relevant to determining the justification for compensation for persons or communities affected by such separations’.  In any legal consideration of a claim for compensation there are two steps. First a wrong (or wrongs) is identified. Second the harm to the victim is identified and ‘measured’ to the best of the court’s (or other decision-maker’s) ability using established principles.

In this section we identify the wrongs involved in the forcible removal of Indigenous children from their families. In the following section we define principles which, we recommend, it would be appropriate to employ to remedy the harms caused by those wrongs.

Evaluation of government actions
The Inquiry has been careful not to evaluate past actions of governments and others through the prism of contemporary values.

The Government takes the view that in considering, and ultimately judging, the laws, policies and practices which led to the separation of Aboriginal and Torres Strait islander children from their families, it is appropriate to have regard to the standards and values prevailing at the time of their enactment and implementation, rather than to the standards and values prevailing today  (Commonwealth Government submission page 30).

At the same time, it is important to appreciate that there was never only one set of common and shared values in the past. Even predominant values were not always faithfully reflected in policies and practices. There have always been dissenting voices. There was never universal agreement on what was right and just. 

Nevertheless, it is appropriate to evaluate the (legislative and administrative) actions of governments in light of the legal values prevailing at the time those actions were taken. Those legal values can be found in the common law introduced to Australia by the British colonists and progressively developed by Australian Parliaments and courts. More recently they can also be found in the international law of human rights to which Australia not only voluntarily subscribed but played a leading part in developing and promoting.

Two broad periods
Broadly speaking there were two distinct periods in law and policy when Indigenous children were forcibly removed. The first was the period of segregation of ‘full bloods’ for their ‘protection’ and removal of ‘half-castes’ for absorption. This period commenced as early as the mid-nineteenth century in eastern States. It was marked by the maintenance of separate legislative and administrative regimes for Indigenous children and families.

Change came with the 1937 national conference at which the assimilation policy was adopted nationally. New legislation was introduced almost everywhere by 1940. Thereafter, some jurisdictions took the path of applying the same laws and standards to Indigenous as to non-Indigenous families, although the application remained discriminatory and unfair (Victoria, Tasmania and New South Wales). The remainder continued for a period with separate legislative and administrative regimes (Western Australia, Northern Territory, South Australia, Queensland). These were gradually dismantled during the late 1950s and early 1960s and Indigenous children were transferred to the mainstream child welfare systems. However, the policy and practice of assimilation, including the transfer of Indigenous children into non-Indigenous families and institutions, continued into the 1970s. The transfer of Indigenous children continues to this day, as documented in Part 6 of this report.
Colonial legal standards
As British subjects, Indigenous peoples throughout the British empire received a promise of treatment consistent with the British common law. Colonies which ignored that promise were roundly condemned from Britain. The Australian colonies were the most notorious.  In 1837 the British Parliament tried to bring these outposts into line.

It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil; a plain and sacred right, however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country  (House of Commons, Select Committee on Aboriginal Tribes (British Settlements) 1837 page 425).

Indigenous children because the focus of colonial policies towards Indigenous peoples generally. In the nineteenth century, children, whether Indigenous or non-Indigenous, were not thought of as children are today. 

Childhood is a social construct and, as such, it has always been perceived and acted upon in the context of the particular time and place  (Jamrozik and Sweeney 1996 page 13).

In particular, legislation about children and the establishment of residential institutions were not motivated by children’s ‘welfare’ or ‘best interests’. Rather the aim was ‘to prevent the proliferation of a class of criminal slum-dwellers similar to those which plagued other advanced urban countries, by cutting off the source of its juvenile recruits’ (Jaggs 1986 page 2, commenting on the Victorian Neglected and Criminal Children’s Act 1864). The proponents of the Act ‘were motivated by fear of the dangers which idle and disaffected lower classes posed for society, as much, if not more, than compassion for the young people concerned’  (page 2).

Sociologist Robert van Krieken detected a marked difference in the policy approach to Indigenous and non-Indigenous children by the end of the nineteenth century. Non-Indigenous children and their families were part of the ‘civil society’ which engaged in complex interactions with State agencies (1991 page 7). Indigenous children and their families, on the other hand, were outside civil society and policy with respect to them was baldly based on social control; it ‘fit[s] the model of one dominant group regulating and in fact transforming the everyday experience of another, almost entirely against their will’ (1991 page 8).

It made little difference what the family situation really was or how the children were cared for, because being Aboriginal was in itself reason to regard children as ‘neglected’. Even on the rare occasions when officials did not regard Aboriginal culture with contempt and fear, the emphasis on marriage and having fixed housing and employment in definitions of ‘neglect’ was inherently biased towards seeing all Aboriginal family life as neglectful  (van Krieken 1991 page 8).

Basic safeguards protected the integrity of non-Indigenous families and the well-being of non-Indigenous wards of the State. These safeguards were cast aside when it came to Indigenous families and children throughout Australia.

There was a significant divergence between the imported British notions of fairness and liberty and the treatment of Indigenous peoples in Australia. The major components of forcible removal were,
1.	deprivation of liberty by detaining children and confining them in institutions;
2.	abolition of parental rights by taking the children and by making children wards of the Chief Protector or Aborigines Protection Board or by assuming custody and control;
3.	abuses of power in the removal process; and
4.	breach of guardianship obligations on the part of Protectors, Protection Boards and other ‘carers’.

Deprivation of liberty
Respect for individual liberty is fundamental to the British common law inherited by the Australian colonies and subsequently the States and Territories. It traces its origins to the Magna Carta of 1215,  a compact between the King and the barons of England. King John promised that the barons ‘have and hold the aforesaid liberties, rights and concessions, well and in peace, freely and quietly … for ever’ (article 63). These liberties included the freedom from being seized or imprisoned ‘or in any way destroyed’ ‘excepting by the legal judgement of his peers, or by the laws of the land’ (article 39). If that promise was or had been breached, liberty was to be restored (article 52).

Gradually respect for individual liberty extended beyond the barons to all people in the kingdom. The law defended individual liberty by making false imprisonment a criminal offence and permitting the individual to sue for damages on proof of trespass to his or her person (Halsbury 1955 Volume 10 page 735). The Crown (or government) and public servants could be sued just like private citizens when a public servant in the course of his or her duty wrongfully deprived a person of liberty (Halsbury 1955 Volume 10 page 736).

The taking of Indigenous children from their homes by force and their confinement to training homes, orphanages, other institutions and mission dormitories amounted to deprivation of liberty and, in fact, imprisonment, in the common law sense (Halsbury 1955 Volume 10 page 765). Not every deprivation of liberty and imprisonment is unlawful or wrongful. Detention is lawful when it is ordered or ratified by a court according to law.

The common law offered two safeguards of liberty. The first was the requirement that everything except a very short detention (for example following arrest) must be scrutinised by a court. A deprivation of personal liberty was only lawful after the proponent of removal had established its desirability and lawfulness in open and independent court of law. The second safeguard was the writ of ‘habeas corpus’ (literally ‘deliver the body’). This writ developed in tandem with protection of individual liberty and enabled a person to demand freedom – usually for another person – by bringing the Government into court to justify that person’s detention or imprisonment. The court would order the person’s release if the detention was found to be unlawful, as would often be the case where the detention had not been sanctioned by the court in the first place. The court process offers the safeguard of publicity as well as the chance to challenge the grounds of removal.

The safeguard of pre-detention court scrutiny  was denied to Indigenous children in many States and the Northern Territory when legislation permitted them to be removed and confined by the order of a public servant alone (see table). During these periods non-Indigenous children removed from their families had to be processed through the courts. Where an appeal right was given to Indigenous parents, as in New South Wales, the right was ineffectual. The courts were not realistically accessible to Indigenous people in this period. They were unlikely to know of that right and most would not have been able to find any assistance to proceed to court. The civil disabilities under which Aboriginal people laboured precluded most from asserting their rights.

The States which removed the safeguard of judicial scrutiny for Indigenous children and their families were directly discriminating on racial grounds.

Administrative removal powers not subject to prior judicial scrutiny
State/Territory	Years	Grant of power	
Western Australia	1905-1954	Minister empowered to remove any Aboriginal person. As legal guardian of Aboriginal children and head of Aborigines Department Chief Protector (Commisioner of Native Welfare after 1936) could exercise this power in relation to Aboriginal children. After 1909 the removal power in relation to ‘half-caste’ children under eight years delegated to police protectors and Justices of the Peace.	
			
Northern Territory	1911-1957	Commonwealth legislation authorised the Chief Protector to undertake ‘the care, custody or control of any aboriginal or half-caste if in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so’ and thus to exercise a removal power.	
	1957-1964	The NT Administrator was empowered to declare Indigenous people to be wards.  The Director of Welfare could remove wards at will. An individual had a right of appeal to a court.	
			
New South Wales	1915-1940	Aborigines Protection Board (later Welfare Board) was empowered to remove any Aboriginal child after ‘due inquiry’ without recourse to a court hearing. The parent could appeal to a court.	
			
South Australia	1911-1923	Local protectors were created with guardianship powers circumventing the previous requirement for a magistrate’s court hearing.	
			
Queensland	1897-1939	The Minister was empowered to order removal of Aboriginal families to and between Aboriginal reserves. On reserves Aboriginal children could be confined in dormitories.	
	1939-1965	The Director of Native Affairs was constituted the legal guardian of every ‘aboriginal’ minor (under 21 years) with full parental powers.	
Source: Appendices to this report.
Deprivation of parental rights
Some jurisdictions went further and legislated to strip Indigenous parents of their parental rights, making a Chief Protector or similar official the legal guardian of all children defined to be Indigenous children: Western Australia from 1905 until 1963, the Northern Territory from 1910 until 1964, South Australia from 1911 until 1962, and Queensland from 1939 until 1965. This too was contrary to established common law which safeguarded parental rights.

At least as early as 1592 in Ratcliffe’s Case, the common law courts in England recognised and defended the right of the father (or the mother, but only if the father was dead) to the custody and guardianship of a child, to direct the education of the child and to nurture and control the child. The father is the ‘natural guardian’ of his child according to cases dating from 1748  (Mendes page 624, Halsbury 1955 Volume 21 page 204).

It seems that at common law this applied only to ‘legitimate’ children. Children born out of wedlock were deemed to be ‘children of no-one’ (Dickey 1990 pages 298-99, Jaggs 1986 page 7). However, no State relied on this principle to displace the rights of Indigenous parents. Illegitimate non-Indigenous children were not made wards of the State by legislation. No proof was required that Indigenous children were illegitimate before they were made wards. The legislation extended State guardianship over all Indigenous children satisfying the particular definition at the time regardless of whether they were the children of a marriage or not.  In other words, their Aboriginality (or the ‘degree’ of it) was the reason for the extension of guardianship by legislation, not their legitimacy or illegitimacy.

The Crown, as the ‘parent’ of all subjects, and the courts have long had the power to remove parental rights. Both at common law (Re Agar-Ellis 1878) and under legislation (with the exception of Queensland from 1865 until 1911), however, an individual case would always be scrutinised and the parent could only forfeit parental rights through misconduct or because a court found guardianship to be in the individual child’s best interests. The Australian High Court confirmed this position, for a non-Indigenous parent, in 1955.

It must be conceded at once that in the ordinary case the mother’s moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child.  
It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another’s, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child  (Full High Court in Mace v Murray page 385).

Like a parent, or school teacher to whom the parent has entrusted his child, a non-parental guardian such as the Chief Protector had the power at common law to ‘confine’ his or her ward. By making the Chief Protector or Board the guardian, Western Australia, South Australia, the Northern Territory and Queensland legalised the detention so that they were not in law guilty of wrongful imprisonment of Indigenous children. 

Confinement, even by a parent, must be done ‘in a reasonable manner and for a sufficient reason’ (Halsbury 1955 Volume 38 page 769). Aboriginal Protection Acts did not require Chief Protectors or Protection Boards to consider questions of reasonableness or sufficiency. These decisions were already made: if the child was Aboriginal or ‘half-caste’ that was reason enough to remove and institutionalise him or her. Again the common law protections were set aside in the interests of maximising State control over Indigenous children. Again Indigenous people were denied common law rights taken for granted by other Australians.

The discrimination was noticed and criticised by many. In 1938 Gladys Prosser made the point in an interview to the WA Sunday Times (quoted above).  In the same year, the Hon H Seddon MLC contrasted child welfare practice relating to Indigenous and non-Indigenous mothers.

I wish to cite the case of a mother whose children were taken from her. Judging by the conditions associated with her and judging by white standards, one might say that the department had a considerable amount of reason for its action. Here again is a case where sympathy and understanding might have averted the very serious trouble that overtook this woman. Her two children were taken from her and, as a result, the woman lost her reason. She was confined to the asylum, and the report from that institution is that she is in a very depressed state.  I ask the House again to judge that case from the standpoint of a white woman.  If a white woman were deprived of her children she would fall into a very depressed state of mind and would suffer considerably. Although the power is given under the Child Welfare Act to take children from undesirable [white] parents, such parents are given every opportunity to appreciate the possibilities of the law and to mend their ways. When dealing with a native, a person whose grasp of our white laws is only more or less that of a child, I say there should be sympathy, there should be understanding, above all there should be help extended to the native before such a drastic step is taken as to deprive a mother of her children  (WA Hansard 22 November 1938 at page 2243).

Abuses of power
Legislation authorised the majority of removals. It authorised what would otherwise have been gross breaches of common law rights. Many of the practices carried out under ‘protection’ legislation, however, should not have been countenanced. Sadly even where a court hearing was required, courts were often less than vigilant about these abusive practices.
Some Protectors and Inspectors resorted to kidnap, taking the children from school or tricking them into their cars. Children disappeared without their parents’ knowledge. A woman who had been taken to Cootamundra Girls’ Home in New South Wales spoke about the practice of Robert Donaldson, MHR and Inspector: ‘he used to go around with a tin of boiled lollies, coaxing, taking little kiddies, different kiddies off different stations. Take them for a ride and never take them back’  (quoted by Hankins 1982 on page 2.1.13).

When they came, they had things like balloons and party hats. They told us that we were going on a big party, all the kids. I didn’t realise what was happening. They took some of my cousins out of school and put us in the van. I could see Mum was crying. That’s when I got frightened. I knew something was wrong. And Dad was running through, and he was like a madman   (quoted by Stuart Rintoul submission 58).

The police came one day from Halls Creek when they were going on patrol to L. [pastoral station] and found me, a half-caste kid. They told the manager to take me to Fitzroy Crossing to wait for the mail truck from Derby to take me to Moola Bulla [government station]. When the manager’s wife told my Mum and [step] Dad that they were taking me to Fitzroy Crossing for a trip, they told her, ‘You make sure you bring her back’. But little did they know that I would never see them again.
Confidential evidence 821, Western Australia: child brought up traditionally by her Aboriginal parents but captured at 12 years in the 1930s.

Today the injustice of these practices is obvious, as the NSW Government recognised in its interim submission to the Inquiry.

The manner in which children were taken compounded the shock and trauma of losing the children. Some children were taken direct from school without their parents knowing, without opportunities to say adequate farewells  (page 119).

Many people protested against these unjust practices at the time.  Inspector Thomas Clode, a Sub-Protector of Aborigines based in Port Augusta, South Australia, wrote to the Commissioner of Police on 24 February 1910 that,

Speaking for this Division only [Port Augusta], which is a very large one indeed, the only suggestions I have to make is to leave the Half-Caste Children alone. They are well looked after by their Mothers and have never caused any annoyance to the white settlers. I fail to see that any good will be done by placing them in the State School. Knowing the Blacks as well as I do I have no sympathy with the proposed Gathering in of the Half-Castes in this Division. I can only look upon it as a very cruel thing to do, and fear grave consequences will be the result  (quoted by Mattingley and Hampton 1992 on page 61). 
Ten days earlier, Inspector Clode had written to his superior that,

… on the 16.2.1909 instructions were received by me re committing a number of half-caste children to the State Children’s Department … I think it is my duty to inform you that if these instructions are carried out that grave consequences may be the result, as the natives have as much love and affection for their children as the white people have, and they will fight for the sake of their children. Such being the case it appears to me to be a very cruel thing to enforce. And it is looked upon by the settlers in the interior as being nothing short of kidnapping …  (quoted by Winifred Hilliard submission 387). 

As a consequence he was instructed by W G South, the Protector of Aborigines,

… I am still of the opinion that all half caste children found wandering with the Aborigines in the interior should, for their own protection and proper up-bringing, be placed under the care of the State Children’s Department, there they will be educated and taught useful occupations instead of being left to acquire the habits and customs of savages and thus continue an increasing burden on the State.  It is regrettable that the natives cannot see that their children would be much better off if removed but as this is apparently impossible, I would recommend that at present only those children who are considered not under proper care and control be removed   (quoted by Winifred Hilliard submission 387).

H S Taylor, proprietor and editor of South Australia’s Renmark Pioneer, wrote to the Protector of Aborigines, around 1910,

[I] call to your attention what I believe to be a grave miscarriage of the intentions of the provision made for the protection of the [A]borigines of this State … I cannot conceive that it was ever the intention of the legislature that native lads should be torn from their parents without their consent, especially when in the present case, it could be easily shown that the lads were not, in the ordinary sense of the term ‘neglected children’. Both of them, in point of fact, were working for kind and considerate masters; the father is in good and regular work … I am unable to regard it as anything short of an outrage that they should have been so sent in defiance of the parents’ wish, more particularly when sending them involved their detention for a period of years … 
the affair has so worked on the mother’s mind that she has had several seizures of fits since the abduction of their children.

 … the lads were got from their employers, brought into court and committed without either parent knowing of it or having any opportunity to be present, to intimate their mind in the matter … [the father] is strongly opposed to their detention in the industrial school, being of the opinion that they will probably fret themselves ill there  (quoted by Mattingley and Hampton 1992 on page 159).

The Superintendent of a South Australian boys’ home recorded in 1964 that,
 … he was only held down in town by bluff, and was not a Ward of State … (document supplied with confidential submission 179, South Australia: man removed with his brother to a predominantly non-Aboriginal Church of England Boys’ Home as an ‘experiment in assimilation’).

Breach of guardianship duties
The treatment of children while under ‘protective’ guardianship, or in the care and custody of a Protector or Protection Board, was often officially recognised at the time as intolerable. Many children suffered greatly while in the ‘care’ of the State. Supervision of their placement in institutions or foster care was inadequate to protect them from brutal treatment and often abuse. Yet these ‘carers’ were placed by law in a position – a ‘fiduciary relationship’ – in which they owed legal obligations of care and protection to the children. The fiduciary duty was ‘to care for, protect and rear’ the ward  (KM v HM 1992 page 323).

A fiduciary relationship exists where one party is dependent or vulnerable and the other has discretionary powers over the first.

[T]he critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position  (Justice Mason in Hospital Products Ltd v United States Surgical Corporation 1984 at pages 96-97).

The duties of a fiduciary may be spelt out in the legislation creating the fiduciary relationship. Where the legislation leaves gaps, these are filled by the common law.

The most obvious fiduciary relationship is that between a child and his or her guardian. At common law the relationship of guardian and ward was identical to that of father and child, with the additional obligations that the guardian who is not a parent must take into account the parent’s wishes regarding the religion and education of the child and must ‘teach the infant dutiful feeling towards a surviving parent’  (Halsbury 1955 Volume 21 page 211; see also Ex parte Earl of Ilchester 1803-1813).

The fiduciary must refrain from harming the ward, must protect the ward from harm and must provide for his or her education (Batley 1996 page 188). There is an obligation of maintenance (Mathew v Brise 1851). Where harm is caused by an employee or a delegate of the fiduciary, the fiduciary is ‘vicariously liable’.

A fiduciary cannot escape liability for breach of his or her duties to a ward or other dependent child by showing that the custody of the child was transferred to someone else. For example, a Protection Board might claim it was not its fault that its wards were inadequately educated or were exploited or abused while they were living at a church-run orphanage or in foster care. The claim would fail. The legislation did not authorise the Boards to delegate their fiduciary duties and common law does not permit such delegation because a ward is especially vulnerable and dependent  (Reynolds v Lady Tenham 1723, Burnie Port Authority v General Jones 1994 page 62).

At the same time, a person with physical custody of the child was also likely to have been in a fiduciary relationship because of the child’s dependence and the custodian’s discretionary powers, for example, regarding the child’s accommodation and maintenance, education and employment and extent of contact with family members. This applies, for example, to the management of a church-run orphanage or training home where forcibly removed children were placed.

The  table opposite sets out the statutory obligations created by legislation that established fiduciary relationships between Protectors or Protection Boards and forcibly removed Aboriginal children (or in some cases all Aboriginal children).

The Protectors and other officials were obliged to refrain from causing physical harm to forcibly removed children, to protect the children from any such harm, to provide individually and in each child’s best interests for their custody and maintenance, and to provide for education. Paul Batley suggests that the duty should be broader in the case of forcibly removed children, extending to their emotional well-being, because their parents had been denied the opportunity to perform this function. In other words, the duty is greater because the child is entirely and solely dependent on the Board for all the necessities of both life and psychological and emotional development  (1996 page 191).

If the nature of the obligation depends on the nature of the relationship, then it is arguable that the Board’s absolute control over the physical and emotional wellbeing of the child supports the recognition of a duty to provide for the essential needs of the child  (page 191).

We can readily identify three ways in which Protectors and Boards failed in their guardianship duties to Indigenous wards or children to whom they had statutory responsibilities.  In many cases the agents or delegates of the State similary breached their fiduciary duties: missions, church institutions, forster carers and ‘employers’.
1.	They failed to provide contemporary standards of care to Indigenous children when such standards of care were provided to non-Indigenous children in similar circumstances.
2.	They failed to protect the children from harm.
3.	They failed to involve Indigenous parents in decision-making about their children.
Statutory sources of guardianship and related fiduciary obligations
State/Territory	Years	Grant of Power	
			
Western Australia	1886-1905	Aborigines Protection Board responsible for care, custody and education of Aboriginal children.	
	1905-1963	Chief Protector (1905-36), thereafter Commissioner of Native Welfare, the legal guardian of all Aboriginal children (except State wards after 1954). Aborigines Department responsible to provide for the ‘custody, maintenance and education’ of Aboriginal children.	
South Australia	1844-1911	Protector of Aborigines made the legal guardian of every half-caste and other unprotected Aboriginal child whose parents were dead or unknown.	
	1911-1962	Chief Protector the legal guardian of every Aboriginal and ‘half-caste’ child until 1923 when he was made legal guardian of every child with any Aboriginal ancestry.	
Northern Territory	1910-1957	Chief Protector (Director of Native Welfare from 1939) the legal guardian of every Aboriginal and ‘half-caste’ child.	
	1957-1964	Director of Welfare empowered to declare Indigenous individuals to be his wards; some were deemed wards.	
Victoria	1869-1957	Legislation authorised the making of regulations providing for the ‘care, custody and education of the children of aborigines (as defined)’.	
	1957-1967	One function of the Aborigines Welfare Board was to promote ‘the moral, intellectual and physical welfare of aborigines’ but otherwise no child-specific powers, nor a regulation-making power as previously.	
New South Wales	1909-1915	Aborigines Protection Board charged with the duty ‘to provide for the custody, maintenance and education of the children of aborigines (as defined)’.	
	1915-1940	Additionally, entitled to ‘assume full custody of the child of any aborigine’.	
	1940-1969 	Education duty dropped.	
Queensland	1897-1939	Legislation authorised the making of regulations providing for the ‘care, custody and education of the children of aborigines (as defined)’.	
	1939-1965	Director of Native Affairs the legal guardian of every ‘aboriginal’ child under 21 years.	

Source: Appendices to this report.

Failure to provide care to contemporary standards
Many witnesses to the Inquiry spoke of the appalling standards of care in institutions. Former residents told of being cold and hungry, worked too hard but educated too little. They told of brutal punishments, fear of sexual abuse and of the stifling of affectionate relationships. They reported emotional abuse by the denigration of Aboriginality and the denial of family contact.

In a submission to the Inquiry the Baptist Churches of Western Australia acknowledged that the standards of care were inadequate.

In retrospect, however, the Baptist Churches of Western Australia acknowledges that the institutionalised nature of the arrangements in the earlier years, the transfer of children between houseparents, the limited number of trained staff, and the paucity of resources available, did not provide the optimum family-replacement support for already deprived children.

... the care provided fell far short of standards being developed in WA at the time. This was inevitable, and in this respect Marribank was no different to similar organisations such as Roelands, Parkerville etc. Deficiencies were due to recurrent problems of recruiting and maintaining suitable staff, including relief and support staff, unsuitable buildings, the isolation of Marribank, and the formidable costs involved in running a child care institution  (submission 674 pages 2 and 12).

The mainstream child welfare system was also seriously flawed but children in the mainstream did benefit from advances in knowledge about child development and the effects of institutionalisation many decades before Indigenous children were accorded the same standards of care.

In 1874 in New South Wales the Second Report of the State’s Public Charities Commission roundly rejected institutionalisation and recommended ‘boarding out’ or fostering for destitute and orphaned children. This had already occurred in Victoria and Tasmania; South Australia had adopted a similar policy but failed to put it fully into effect. The Commission reported that,

Those who founded the barrack system for the management of children thought less, it is to be feared, of its probable effects on the children than of the ease with which officers could manage them … Fatal experience in the Mother Country [England] has however proved that this mechanical routine, though necessary for the management of numbers is prejudicial to a healthy development of character, and to the rearing of children as good and useful men and women  (page 40). 

The same experience had led even earlier to the adoption of boarding-out in Scotland, France, Hamburg in Germany and Massachusetts in the USA.

Children placed with respectable families in their own rank of life, where they are cared for as if they were members of the household, lose that feeling of homelessness, isolation, and pauperism, which is inseparable from the routine and constraint of a pauper school. Their intelligence is stimulated by fresh objects and interests of their new life; the natural affections are called into healthy play; the sentiment of individual responsibility is quickened, and thus the foundations are laid of sound mental education and moral character   (page 44 quoting the Victorian Commissioners inquiring into penal and prison discipline).

The home, the family, are the best nursery for all children, and a poor home is almost always better than a good almshouse  (page 48 quoting Daniel Kemp, Governor of the Edinburgh Union, February 1869).

With this amount of evidence in its favour, we would most earnestly recommend the adoption of the system in this Country, as the best way of escape from the dangers to which children are exposed by being massed in large institutions  (page 51).
Institutions as the primary absorption and assimilation tool for Indigenous children, however, persisted for another 90 years in most States and the Northern Territory. They were omitted from developing considerations of humanity and sound practice in child welfare.

… the placement component of the removal policy was out of step with what was driving placement policy for non-Indigenous children, which to me is an extraordinary thing. I find it hard to explain … I think the various Aboriginal authorities were closely linked to the welfare authorities … So they should have been informed by that same material. And one is certainly drawn towards the conclusion that Aboriginal and Torres Strait Islander children were at that time being treated in a different way for reasons which I’m not entirely familiar with. We should have known at the time the effect that this was going to have on these people, particularly in terms of the personal psychology but also, I think, in terms of their capacity to be effective and caring parents. There was literature at the time which was driving policy in a more constructive way with other people  (Professor Brent Waters evidence 532).

Infants’ anxiety on separation from their mothers was scientifically observed at least as far back as Freud in 1905 and various theories emerged to explain the reasons (Bowlby 1961 pages 252-3). Psychologists Dorothy Burlingham and Anna Freud made observations of babies and young children in English children’s homes during the Second World War. They found babies between one and three years reacted particularly violently to separation. The child’s ‘longing for his mother becomes intolerable and throws him into states of despair’ (quoted by Bowlby 1961 page 261). Older children, those aged between three and five, also experienced distress, but these children believed the separation was punishment and therefore felt guilt. Yet Freud and other influential figures considered a baby or a child only had needs relating to physical survival. Burlingham and Freud therefore interpreted their observations as indicating a need for a more progressive process of separation from the mother instead of a need to keep mother and child together if possible. They failed to perceive the emotional needs of children or the significance of affectional attachments in the development of the human personality. The academic psychiatrist John Bowlby brought these issues to the fore in 1951 and subsequently.

Again it took some time for Indigenous children to benefit from this new understanding. Indigenous children continued to be institutionalised disproportionately. They continued to be subjected to a standard of care below that provided to non-Indigenous children at the same time.

Failure to prevent harm
The second type of breach was the failure of the Protectors and Boards to prevent the abuse and exploitation of so many of the children in their care. The Inquiry heard evidence not only of the sufferings of many vulnerable children in government and private institutions and foster families but also of the repeated failures of adequate preventive oversight by officials.

Melbourne law firm Phillips Fox submitted that,

In our view, by taking the children away and making them State Wards – by becoming ‘legal guardian’ to these children – the State took on parental responsibilities, or fiduciary duties, in relation to each such child.

On our instructions, the State in many cases failed to fulfil these responsibilities and duties, not only by denying the children their culture, but by failing to ensure that they were safe from ill treatment, whether they were in institutions or foster care. Many of the children were verbally, physically, emotionally, or sexually abused – or all of these things  (submission 20 page 5).

The children were accommodated in institutions whose physical condition was frequently appalling and not conducive to their proper care and maintenance or education.  In 1929 the Rector of Port Lincoln visited the institution at Jay Creek outside Alice Springs. His observations received widespread press coverage (Markus 1990 page 29). The children’s dormitory accommodated 48 in a space 24 x 50 feet or 7.3 x 15.3 metres.

… a more draughty ugly dilapidated place one could hardly imagine.  I think that the children would be less liable to colds in the open than in the disgraceful accommodation provided for them  (quoted by Markus 1990 on page 30).

In 1938 the Northern Territory Government Secretary wrote of the school for ‘half-castes’ at the Telegraph Station that,

[It] and its furniture was in keeping with the rest of the institution which could only be described as nauseating and long overdue for demolition  (quoted by Markus 1990 on page 35).

Officially-recognised instances of physical abuse have been quite well-documented and some have been mentioned above.  In 1933 the manager of Kinchela Boys’ Home in New South Wales had to be warned about punishments he had employed and the NSW Aborigines’ Protection Board received allegations from a former Cootamundra Girls’ Home staff member about brutal punishments there in 1927.  In Western Australia, Chief Protector Neville had found it necessary to draw up regulations to ban ‘degrading and injurious punishments and the practice of holding inmates up to ridicule, such as dressing them in old sacks or shaving girls’ heads’   (Neville 1947 page 113).

Failure to involve parents
The third type of breach was the failure to consult the living parents’ wishes concerning the religion and education of their children. Not only were very many children brought up to despise Aboriginal people such as their own parents, many were told falsely their parents were dead.

Forcible removal itself a breach?
Even with the knowledge and by the standards of the times, Protectors and Boards may have breached their fiduciary duties to many children by the very act of removing them from parental or other family care.

We would argue that the removal from the family was so casual as to allow unnecessary deprivation to be experienced by all the children regardless of whether some special care was necessary because of the context of their situation. We would argue also that other basic rights were totally ignored in the structure of care of the children, basic human rights. So much so as to suggest that all institutions involved in the care of the children during that period [early 1960s] failed in their fiduciary duty to some extent … I think we would want to say that the failure doesn’t mean that many individuals in government and the churches were uncaring and did not work unstintingly to love and care for the children  (Rev. Bernie Clarke evidence 119). 

We have spoken with people who, even today, honestly believe that it was right to transfer indigenous children into white families because this would give them the material benefits they would not otherwise have.

We contend that this motivation does not  in any way morally excuse, or legally justify, the taking of children from loving families, and robbing them of their culture and identity  (Phillips Fox Solicitors submission 20 page 7).
International human rights
By 1940 assimilation had become official policy in all Australian mainland States and the Territories.  In fact the practice of child removal with the aim of children’s ‘absorption’ pre-dated the term ‘assimilation’. The assimilation policy persisted until the early 1970s and continues to influence public attitudes and some official practices today. Yet within a few years of the end of the Second World War, Australia, together with many other nations, had pledged itself to standards of conduct which required all governments to discontinue immediately a key element of the assimilation policy, namely the wholesale removal of Indigenous children from Indigenous care and their transfer to non-Indigenous institutions and families.

The United Nations Charter of 1945, the Universal Declaration of Human Rights of 1948 and the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 all imposed obligations on Australia relating to the elimination of racial discrimination. Genocide was declared to be a crime against humanity by a United Nations Resolution of 1946, followed by the adoption of a Convention in 1948. The Australian practice of Indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. Yet it continued to be practised as official policy long after being clearly prohibited by treaties to which Australia had voluntarily subscribed.

Systematic racial discrimination
Legislation made the removal of Indigenous children, as defined, sometimes to cover only ‘half-castes, easier than would have been the case had a court order been necessary. This legislation established a legal regime for those children and their families which was inferior to the regime which applied to non-Indigenous children and their families. A pre-removal court hearing would have provided a basic protection, even if only in theory due to the cultural bias of the courts and the unavailability of legal aid at the time. The legislation was racially discriminatory.

Even where a court hearing was necessary, the law discriminated against Indigenous children and families in a number of ways. Almost invariably courts failed to ensure that the families were aware of their right to attend, that they knew the date, that they understood the nature of the proceedings and that they had an opportunity to be legally represented. As noted, in any event legal aid was unavailable.

Too frequently the values and standards expected of Indigenous families were the values and standards of middle-class welfare workers and magistrates. For example, the definition of ‘neglect’ in the Neglected Children and Juvenile Offenders Act 1905 (NSW) included ‘having no visible means of support’ or ‘no fixed abode’, ‘sleeps in the open air’ and ‘who without reasonable excuse is not provided with sufficient and proper food, nursing, clothing, medical aid and lodging’. These descriptions appear overwhelmingly to target Indigenous lifestyles. By imposing these values on Indigenous families, the child welfare legislation virtually ensured the success of any application to a court for a removal order.

Legislation making poverty or homelessness grounds for removal was at best unfair and unconscionable in light of the history of colonial dispossession, segregation and control. Most Indigenous families had been forced into poverty, dependence on handouts and inadequate housing. They were then expected to attain standards of living which were effectively denied to them.

Racial discrimination was recognised as contrary to international law at least upon the establishment of the United Nations in 1945. The UN Charter, which Australia ratified in that year, provides that,

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
     …

(c) universal respect for, and observance, of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion  (Article 55).

In 1950 Hersch Lauterpacht commented on the Charter’s human rights provisions.

Members of the United Nations are under a legal obligation to act in accordance with these Purposes. It is their legal duty to respect and observe fundamental human rights and freedoms. These provisions are no mere embellishment of a historic document; they were not the result of an afterthought or an accident of drafting. They were adopted, with deliberation and after prolonged discussions before and during the San Francisco Conference, as part of the philosophy of the new international system and as a most compelling lesson of the experience of the inadequacies and dangers of the old  (pages 147-148).

The binding nature of the Charter’s human rights provisions has been repeatedly confirmed by the most eminent jurists. Even before 1950 they were recognised as binding by the most senior North American judges. Two joint judgments in the 1948 US Supreme Court case of Oyama v California relied on these provisions.

Moreover, this nation has recently pledged itself through the United Nations Charter to promote respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Justices Murphy and Rutledge).
… we have recently pledged ourselves to co-operate with the United Nations to ‘promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. How can this nation be faithful to this international pledge if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced?  (Justices Black and Douglas).

In 1945 the High Court of Ontario relied upon the human rights provisions of the Charter as part of the public policy of Canada in refusing to enforce covenants based on racial origin  (In re Drummond Wren page 781).

The prohibition of racial discrimination soon found further expression in the 1948 Universal Declaration of Human Rights, providing ‘an authoritative guide … to the interpretation of the provisions in the Charter’ (Brownlie 1990 page 571).

… the indirect legal effect of the Declaration is not to be underestimated, and it is frequently regarded as part of the ‘law of the United Nations’  (Brownlie 1990 page 571).

Article 1 of the Universal Declaration provides in part that ‘All human beings are born free and equal in dignity and rights’.  Indigenous Australians did not enjoy this right until at least the late 1960s and even later in Western Australia and Queensland  (Markus 1988 page 56).

Article 2 states that,

Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Universal Declaration enumerated a catalogue of human rights to which everyone is entitled without any distinction based on race.  Indigenous Australian families and children in most States and the Northern Territory were denied equal enjoyment of virtually all the rights recognised by the Universal Declaration, in particular,
•	the right to liberty and security of person (Article 3),
•	the equal protection of the law (Article 7),
•	the right to a fair and public hearing by an independent and impartial tribunal in the determination of their rights and obligations (Article 10),
•	freedom from arbitrary interference with their privacy, family, home and correspondence (Article 12), and
•	the right to a free elementary education and the right of parents to choose the kind of education to be given to their children (Article 26).

From 1950 then the prohibition of systematic racial discrimination on the scale experienced by Indigenous Australians was recognised as a rule binding all members of the United Nations. The subsequent International Convention on the Elimination of All Forms of Racial Discrimination, finalised in 1965 and ratified by Australian in 1975, simply gave greater precision to what was already acknowledged as an injunction of international law.

The [Convention] is, to a large extent, declaratory of the law of the Charter, or, in other words, the basic principles of the convention lay down the law which binds also states which are not parties to the convention, but, as members of the United Nations, are parties to the Charter  (Schwelb 1972 page 351).

In Australia the prohibition of racial discrimination was disregarded for many more years. Legislation continued to provide a different and inferior regime for Indigenous children until 1954 in Western Australia, 1957 in Victoria, 1962 in South Australia, 1964 in the Northern Territory and 1965 in Queensland. Direct discrimination continued following the repeal of specific Indigenous legislation as welfare departments continued to implement the same policies.

This level of systematic racial discrimination amounts to a ‘gross violation of human rights’. While there is no international consensus on the full list of ‘gross violations’, most lists include systematic racial discrimination together with extermination and torture (Dimitrijevic 1992 page 217, International Law Commission 1991, Third Restatement of the Foreign Relations Law of the United States section 702, van Boven 1993 para 13). The term ‘gross’ refers to the severity, scope or size of the violations as well as the type of human right being violated  (van Boven 1993 para 8).

Indirect racial discrimination continues into the present both in child welfare and juvenile justice systems, as documented in Part 6.  Indigenous children and their families continue to be judged from an Anglo-Australian perspective which demonstrates little respect for Indigenous values, culture and child-rearing practices. It provides little or no encouragement of or support for Indigenous parenting.  Indigenous children continue to be transferred, permanently or temporarily, from their families and communities to the custody and control of non-Indigenous Australians.

Because laws singled out Indigenous children for removal by administrative means and on the ground of their race or colour, they were racially discriminatory. Whether they may have been partially motivated by a benign purpose is immaterial. In determining whether discrimination has occurred, the purpose or intention of the alleged discriminator is not decisive. In international legal usage the term ‘discrimination’ refers to distinctions which have the purpose or effect of impairing the enjoyment or exercise, on an equal footing, of human rights.

Senior government officials clearly knew they were in breach of Australia’s international legal obligations. For example, writing on 6 July 1949 to the Commonwealth Department of the Interior, A R Driver, Administrator of the Northern Territory, stated,

There are certain restrictions which must remain imposed on Aborigines even though they are at variance with the complete ideals of the Universal Declaration of Human Rights  (Australian Archives No AA ACT: CRS F1 1943/24).

The Canadian Royal Commission on Aboriginal Peoples reported in 1994 on Canada’s relocation of the Inuit peoples of the High Arctic in 1953-55. The relocation involved coercion, separation of the people into different groups by force, holding people in the High Arctic against their will and denial of family allowance and other universal benefits. The Royal Commission found that ‘the relocation was an ill-conceived solution that was inhumane and damaging in its design and effects. The conception, planning and supervision of the relocation did not accord with Canada’s then prevailing international commitments’ because the rights declared in the Universal Declaration ‘were recognized by the Government of Canada at the time of relocation’ (page 157). As a result the ‘relocatees’ had an entitlement to redress including compensation (page 164). The same analysis and conclusion apply to the forcible removal of Australian Indigenous children.

Genocide
Genocide was first defined in a detailed way in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Australia ratified the Convention in 1949 and it came into force in 1951.

The Convention confirmed that genocide is a crime against humanity. This expressed a shared international outrage about genocide and empowered any country to prosecute an offender. A state cannot excuse itself by claiming that the practice was lawful under its own laws or that its people did not (or do not) share the outrage of the international community.

Genocide is defined as, 

… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a.	killing members of the group;
b.	causing serious bodily or mental harm to members of the group;
c.	deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d.	imposing measures intended to prevent births within the group;
e.	forcibly transferring children of the group to another group (article II).
In determining whether the Australian practice of forcible transfer of Indigenous children to non-Indigenous institutions and families was ‘genocide’ four issues must be considered.

Forcible transfer of children can be genocide
Genocide does not necessarily mean the immediate physical destruction of a group or nation. The Polish jurist Raphael Lemkin was the author of the term and the major proponent of the United Nations Convention. He defined ‘genocide’ as ‘a coordinated plan of different actions aimed at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves’ (Lemkin 1944 page 147). The objectives of such a coordinated plan would be ‘the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups’ (Lemkin 1944 page 79).

Lemkin defined genocide to include ‘deliberate separation of families for depopulation purposes subordinated to the criminal intent to destroy or to cripple permanently a human group’. Genocide, he said, typically comprises two phases: the destruction of the cultural and social life of the ‘oppressed group’ and the imposition of the national pattern of the ‘oppressor’ (1944 page 147). 

Lemkin’s approach was adopted in the United Nations Convention of 1948. Genocide can be committed by means other than actual physical extermination. It is committed by the forcible transfer of children, provided the other elements of the crime are established. As the United Nations Secretary-General explained, the separation of children from their parents results in ‘forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time’ (UN Document E/447 1947).

The Venezuelan delegate to the General Assembly summarised the views of the countries which supported the inclusion of the forcible transfer of children in the definition of genocide.

The forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children. Such transfer might be made from a group with a low standard of civilization … to a highly civilized group … yet if the intent of the transfer were the destruction of the group, a crime of genocide would undoubtedly have been committed  (UN Document A/AC6/SR83 (1948) at 195).

It is clear that ‘mixed race’ or ‘half-caste’ children were recognised as ‘children of the group’. that is as Indigenous children and not in any sense as children of no group or as children shared by different groups.

Since colonisation of this continent it is quite reasonable to assume that a child born our of mixed parentage have never been categorised, if one could say that, as ‘part-white’ or ‘part-European’. Thus once it is known that a child has an Aboriginal parent, he or she is seen by the wider community as an Aborigine and will be subjected to racist and other negative attitudes experienced by Aborigines  (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).

Especially during the nineteenth and early twentieth centuries relationships between European men and Aboriginal women were often abusive and exploitative. Many children were the products of rape. The European biological fathers denied their responsibility and the authorities regarded the children with embarrassment and shame. As the ‘mixed race’ population grew many more children did not have a European parent at all, but merely one or more European ancestors. Aboriginal society regards any child of Aboriginal descent as Aboriginal.

Aboriginal children were not removed because their ‘white blood’ made them ‘white children’ and part of the ‘white community’. They were removed because their Aboriginality was ‘a problem’ (Chisholm 1985 page 80). They were removed because, if they stayed with ‘their group’, they would acquire their ‘habits’, their culture and traditions.

Plans and attempts can be genocide
The second issue concerns partial destruction as compared with total destruction of the group. Not all Indigenous children were removed. Yet it would be erroneous to interpret the Convention as prohibiting only the total and actual destruction of the group. The essence of the crime of genocide is the intention to destroy the group as such and not the extent to which that intention has been achieved. Genocide is committed even when the destruction has not been carried out. A conspiracy to commit genocide and an attempt at genocide are both crimes which are committed whether or not any actual destruction occurred.

However, the extent of destruction can be relevant to the offender’s ‘intention’. The intention to destroy the group as such in whole or part must be proven.  It is widely (see Lippmann 1994 pages 24-25, Robinson 1950 page 498) but not universally (see Dinstein 1975 page 55, Bryant 1975 page 691) agreed that an intention to destroy the group ‘in part’ can be genocidal if the aim is to destroy it ‘substantially’.

The Inquiry’s process of consultation and research has revealed that the predominant aim of Indigenous child removals was the absorption or assimilation of the children into the wider, non-Indigenous, community so that their unique cultural values and ethnic identities would disappear, giving way to models of Western culture. In other words, the objective was ‘the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of’ Indigenous peoples (Lemkin 1944 page 79). Removal of children with this objective in mind is genocidal because it aims to destroy the ‘cultural unit’ which the Convention is concerned to preserve.

On this point the Inquiry’s finding is contrary to that of Commissioner Elliott Johnston in the final report of the Royal Commission into Aboriginal Deaths in Custody. Commissioner Johnston considered that the child removal policies were adopted ‘not for the purpose of exterminating a people, but for their preservation’  (National Report Volume 5 para 36.3.7). 

As this issue is central to this Inquiry’s terms of reference, it has been the subject of much wider research than Commissioner Johnston undertook. This Inquiry concludes with certainty on the evidence that while child removal policies were often concerned to protect and ‘preserve’ individual children, a principal aim was to eliminate Indigenous cultures as distinct entities.

… we tried to remove Aboriginal children because they were Aboriginal children and I think that’s a very important thing. It wasn’t just a question of looking at children and saying, ‘There’s a child in need of care, there’s a deserted child, we must look after those individual cases’. The Australian experience has been, ‘We dealt with them en masse because they were Aborigines  (Professor Colin Tatz, Centre for Comparative Genocide Studies, evidence 260).

Mixed motives are no excuse
This finding raises a third issue, namely, the question of mixed motives. Does the Genocide Convention apply where the destruction of a particular culture was believed to be in the best interests of the children belonging to that group or where the child removal policies were intended to serve multiple aims, for example, giving the children an education or job training as well as removing them from their culture? Where good intentions are acknowledged, do they negate the bad or transform the intention to destroy the group as such (ie for its own good) into a benign intention? Does the Convention apply in cases where the destruction of a particular culture and its family institutions was believed to be in the best interests of the children or where the child removal policies were intended to serve multiple aims?

Through much of the period beginning around the middle of the nineteenth century and persisting until the repeal of overtly discriminatory legislation in the 1960s, a key objective of the forcible removal of Indigenous children was to remove them from the influence of their parents and communities, to acculturate them and to socialise them into Anglo-Australian values and aspirations. 
Other objectives included education of the children to make them ‘useful’ and ‘worthy’ citizens, their training for labour and domestic service, their protection from malnutrition, neglect or abuse, the reduction of government support for idle dependants and the protection of the community from ‘dangerous elements’.

A O Neville, Western Australia’s Chief Protector (1915-40), believed he could ‘do nothing’ for ‘full-bloods’, who were thought to be dying out. However, he could absorb the ‘half-castes’.

The native must be helped in spite of himself! Even if a measure of discipline is necessary it must be applied, but it can be applied in such a way as to appear to be gentle persuasion … the end in view will justify the means employed  (quoted by Haebich 1988 on page 156).

Neville’s successor eventually came to have reservations about this policy and practice.

… with caste Aborigines, the emphasis on their ‘whiteness’ instead of acknowledgement of their Aboriginal heritage postulates in my opinion that we have helped to destroy in them a pride of origin which should have been our Christian duty to protect and preserve   (WA Commissioner for Native Welfare Middleton, 1952 Annual Report page 5).

The debates at the time of the drafting of the Genocide Convention establish clearly that an act or policy is still genocide when it is motivated by a number of objectives. To constitute an act of genocide the planned extermination of a group need not be solely motivated by animosity or hatred  (Lippmann 1994 pages 22-23).

The continuation into the 1970s and 1980s of the practice of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. The genocidal impact of these practices was reasonably foreseeable. Dr Sarah Pritchard persuasively argues that a general intent can be established from proof of reasonable foreseeability and that such a general intent, as contrasted with the specific intent when the objective was to absorb Indigenous people, is sufficient to establish the Convention’s intent element (1993; see also Kuper 1985 pages 12-13).

Genocide continued in Australia after prohibition
How early can Australian policies and practices of removing Indigenous children be considered as breaching international law?  The Convention, adopted in 1948 and ratified by Australia in July 1949, came into force in 1951. Certainly any removals after that time with the intention of destroying Indigenous groups culturally would be in breach of international law. It is clear, however, that even earlier removals were in breach of international law.

On 11 December 1946 the United Nations General Assembly adopted a resolution declaring genocide already a crime under international law. This resolution is mentioned in the Preamble to the Genocide Convention, making it clear that when the Convention was adopted in 1948 the crime of genocide was well-established in international law. As Lippmann states (1994 pages 10-11) the resolution ‘clearly recognises that the prohibition on genocide is a component of customary international law which is binding on all states’. 

The existence of genocide as a crime pre-dated the 1946 resolution. Although Lemkin’s 1933 call for genocide to be declared a crime was rejected by the international community, it is generally conceded that it had emerged as such before or during the Second World War  (Hugo Princz v Federal Republic of Germany 1944, Lemkin 1944 page 150).

The policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled ‘genocidal’ in breach of binding international law from at least 11 December 1946 (confirmed by Justice Brennan in Polyukovich 1991 page 587). The practice continued for almost another quarter of a century.

Conclusion
Official policy and legislation for Indigenous families and children was contrary to accepted legal principle imported into Australia as British common law and, from late 1946, constituted a crime against humanity. It offended accepted standards of the time and was the subject of dissent and resistance. The implementation of the legislation was marked by breaches of fundamental obligations on the part of officials and others to the detriment of vulnerable and dependent children whose parents were powerless to know their whereabouts and protect them from exploitation and abuse.
In the hard copy version of this report there is a reproduction of the following item:

Group on an outing from Sister Kate’s Children’s Home, Perth, 1949
Courtesy Mary Terszak.
I would not hesitate for one moment to separate any half-caste from its aboriginal mother, no matter how frantic her momentary grief might be at the time. They soon forget their offspring.
James Isdell, WA travelling protector, 1909.
The issues are growing up not knowing any family history, growing up at school and being asked to bring photos of your family, and you can’t do it and the teacher says, ‘Why can’t you do it?’, and you’re forced to stand up and say that you don’t have any family and people turn around and look at you in disbelief, that you couldn’t have a family.
Confidential evidence 218, Victoria

14		Making Reparation
The Government has to explain why it happened. What was the intention? I have to know why I was taken.  I have to know why I was given the life I was given and why I’m scarred today. Why was my Mum meant to suffer? Why was I made to suffer with no Aboriginality and no identity, no culture? Why did they think that the life they gave me was better than the one my Mum would give me?

And an apology is important because I’ve never been apologised to. My mother’s never been apologised to, not once, and I would like to be apologised to.

Thirdly, I’ve been a victim and I’ve suffered and I’ll suffer until the day I die for what I’ve never had and what I can never have.  I just have to get on with my life but compensation would help.  It doesn’t take the pain away.  It doesn’t take the suffering away.  It doesn’t take the memories away.  It doesn’t bring my mother back. But it has to be recognised.

And I shouldn’t forget counselling.  I’ve had to counsel myself all my life from a very young age. And in the homes I never showed my tears … I’ve been told that I need to talk about my childhood.  I need to be counselled for me to get back on with my life.
Confidential evidence 139, Victoria: woman removed at 12 months in 1967.

Findings
Denial of common law rights
The Inquiry has found that the removal of Indigenous children by compulsion, duress or undue influence was usually authorised by law, but that those laws violated fundamental common law rights which Indigenous Australians should have enjoyed equally with all other Australians. As subjects of the British Crown, Indigenous people should have been accorded these common law liberties and protections as fundamental constitutional rights.

Breach of human rights  
The Inquiry has further found that from about 1950 the continuation of separate laws for Indigenous children breached the international prohibition of racial discrimination. Also racially discriminatory were practices which disadvantaged Indigenous families because the standards imposed were standards which they could not meet either because of their particular cultural values or because of imposed poverty and dependence. 
Finally, from 1946 laws and practices which, with the purpose of eliminating Indigenous cultures, promoted the removal of Indigenous children for rearing in non-Indigenous institutions and households were in breach of the international prohibition of genocide. From this period many Indigenous Australians were victims of gross violations of human rights.

Other victimisation 
The Inquiry has found that many individuals were victims of civil and/or criminal wrongdoing. These wrongs were perpetrated by ‘carers’ and typically ignored by government-appointed guardians. They compounded the initial harm and damage caused by the children’s separation and the denial of access to their families, communities and culture.

The right to compensation
The Inquiry is aware that no measures can fully compensate for the effects of these violations.

The loss, grief and trauma experienced by Aboriginal people as a result of the separation laws, policies and practices can never be adequately compensated. The loss of the love and affection of children and parents can not be compensated. The psychological, physical and sexual abuse of children, isolated among adults who viewed them as members of a “despised race” cannot be adequately compensated. The trauma resulting from these events have produced life-long effects, not only for the survivors, but for their children and their children’s children. The loss of Aboriginal identity, culture, heritage, community and spiritual connection to our country cannot be adequately compensated. Nor can the loss of the parents and other leaders who provide the vision, the strength and the responsibility to carry our communities forward into the future.  It is also impossible to adequately compensate us for the internalised racisms expressed as divisiveness within communities caused by separations, such that we judge ourselves and each other as being more or less ‘Aboriginal’  (Link-Up (NSW) Aboriginal Corporation submission 186 page 2).

Nevertheless, the Link-Up (NSW) submission emphasised the responsibility of governments under international law to provide reparations for gross violations of human rights.

Insofar as reparation and compensation can assist us to heal from the harms of separation, it is our right to receive full and just reparation and compensation for the systematic gross violations of our fundamental human rights  (page 2).

Dr Jane McKendrick, a psychiatrist with the Victorian Aboriginal Mental Health Network, emphasised the healing power of recognition and compensation.

The people who come to see me with depression and other psychological problems and start talking about the things that have happened to them in their childhood – it is as if they are coping with that on their own and no-one else recognises it. Often they are things that they feel they cannot tell anyone else, even the people closest to them.

They also feel that this has been done to them and no-one cares because there has been no official recognition. And people say, well, nothing is going to compensate me for what I have lost and it can never be completely replaced. But I think some acknowledgement and some form of compensation would assist people to feel that their pain and their suffering has been recognised and it has been recognised that something has been done to them. Because families and individuals who have been removed often feel guilty themselves about the removal …

I think it is a central part of the healing process because you have to have the recognition and to have proper recognition you have to have some form of compensation, because a wrong has been done to these people. And for it to be a proper recognition, there has to be compensation. Unless there is proper recognition of what has been done, people really cannot begin to heal properly (evidence 310).

A human rights framework
Principles for responding to the effects of forcible removals must be developed from an understanding of Australian history as having included gross violations of human rights.  International human rights treaties and norms of customary international law impose obligations on countries to respect human rights standards and to prevent their violation, including by private persons (Forde 1985 pages 271-8, Meron 1989 pages 156-9 and 162-9, van Boven 1993 para 41). States breach their obligations when they fail to prevent human rights violations by others as well as when human rights are violated by state action.  In either event the victims have a right to reparation.

… the obligations resulting from State responsibility for breaches of international human rights law entail corresponding rights on the part of individual persons and groups of persons who are under the jurisdiction of the offending State and who are victims of those breaches. The principal right these victims are entitled to under international law is the right to effective remedies and just reparations (van Boven 1993 para 45).

Many international instruments binding on Australia recognise this right to remedies and reparations. Article 8 of the Universal Declaration of Human Rights (1948) states that,
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 2(3) of the International Covenant on Civil and Political Rights (1966), article 39 of the Convention on the Rights of the Child, article 19 of the Declaration on the Protection of All Persons from Enforced Disappearances, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination all provide a right to compensation for a violation of human rights. The last named provides that states parties are to ensure effective protection and remedies against any acts of racial discrimination in violation of the Convention as well as the right to seek ‘just and adequate reparation or satisfaction for any damage suffered as a result of racial discrimination’.

The right to reparation does not depend on treaties alone.  It is now widely recognised that customary international law requires that states make reparation.

Customary norms are binding upon the constituent units of the world community regardless of any formal act of assent to those norms. An integral part of a State’s obligations in regards to international human rights law is the duty to provide an adequate remedy where substantive norms are violated (Anaya 1994 page 360; see also Lutz 1989 page 201).

The Inter-American Court of Human Rights in the Aloeboetoe Case held that the obligation to make reparation is a ‘rule of customary law’ and ‘one of the fundamental principles of current international law’.

In summary, there is an international legal obligation ‘to repair the damage caused, awarding the victims means of rehabilitation and, where applicable, compensation or economic indemnification’ (Artucio 1992 page 192). This obligation passes from the violating government to its successors until satisfaction has been made (Lutz 1989 page 206).

The van Boven Principles
In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Professor Theo van Boven with a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. He submitted a final report, including a proposal for basic principles and guidelines, in 1993.  In 1995, the Sub-Commission requested Professor van Boven to prepare a revised set of basic principles and guidelines for its consideration in 1996. The revised document is entitled Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (van Boven 1996; see Appendx 8).
The principles recognise a right to a remedy for these victims.

4.	Every State shall ensure that adequate legal or other appropriate remedies are available to any person claiming that his or her rights have been violated …

The Inquiry concurs with van Boven that the only appropriate response to victims of gross violations of human rights is one of reparation.  In international law and in the practice of other countries the term ‘compensation’ is generally reserved for forms of reparation paid in cash or in kind. Other terms are used for non-monetary compensation. The term ‘reparation’ is the comprehensive notion. The Inquiry was urged to interpret the term ‘compensation’ in term of reference (c) as ‘intended to include the more encompassing term “reparation” ’ (Aboriginal Legal Service of WA submission 127 page 72).  In light of the clear intent of the terms of reference to redress the history of removals the Inquiry adopts this interpretation.

7.	In accordance with international law, States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparations. Reparations shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition  (van Boven 1996).

A number of submissions to the Inquiry supported an approach to the principles of compensation which recognises the history of gross human rights violations and the obligation to make reparation. Some were aware and supportive of the ‘van Boven principles’. The Aboriginal Legal Service of WA commented that,

Many of the specific recommendations made by those interviewed by the ALSWA are consistent with van Boven’s proposals  (submission 127 page 105).

The ALSWA recommended that Commonwealth and State governments accept and ‘give effect to the proposed basic principles and guidelines recommended by van Boven to justify an award to persons, families and communities affected by the separation of Aboriginal children from their families’ (recommendation 1). The Stolen Generations National Workshop also endorsed the approach taken by van Boven (submission 754 page 50).

The Broome and Derby Working Groups submitted,

We believe that those who have suffered are entitled to monetary compensation and to some form of restitution for what they have lost and that the Government and other institutions responsible for formulating and implementing these policies and practices should assist in the rehabilitation of individuals and families who have suffered the ongoing effects of these policies and practices   (submission 518 page 2).

In its 1994 report on the High Arctic Relocation of 1953-55, the Canadian Royal Commission on Aboriginal Peoples proposed a package of reparations along similar lines.  It recommended that the Canadian Government ‘should acknowledge the wrongs done to the Inuit and apologize to the relocatees’, should fund additional services to assist the readjustment of ‘returnees’ and all others still adversely affected, and should make ‘provisions for returning, including re-establishment in the home community’ and should pay monetary compensation for the effects of relocation (pages 163-164). 

Reparations should be material, in-kind and non-material and should include, but not be confined to, monetary compensation. In this Part we make recommendations relating to acknowledgment and apology, guarantees against repetition, some measures of restitution and monetary compensation.  In Part 5 we make further recommendations which are restitutive in nature and a number of recommendations which are rehabilitative in nature.

Components of reparation
Recommendation 3:  That, for the purposes of responding to the effects of forcible removals, ‘compensation’ be widely defined to mean ‘reparation’; that reparation be made in recognition of the history of gross violations of human rights; and that the van Boven principles guide the reparation measures. Reparation should consist of, 
1.	acknowledgment and apology,
2.	guarantees against repetition,
3.	measures of restitution,
4.	measures of rehabilitation, and
5.	monetary compensation.

The gross human rights violations documented by the Inquiry have affected Australia’s Indigenous peoples widely. They have affected the families and communities of those forcibly removed. They have affected the entire Indigenous population with demoralising consequences. The van Boven principles recognise that victims of violations may be direct and indirect, thus including the children and families directly affected together with entire communities.

6.	Reparation may be claimed individually and where appropriate collectively, by the direct victims, the immediate family, dependants or other persons or groups of persons connected with the direct victims.

The importance of making reparation to all who suffered as a result of these practices is recognised in the Inquiry’s terms of reference and was underlined by a number of submissions to the Inquiry.
Compensation needs to be seen not only in direct relation to the children who were removed, but also the parents, families and communities from which the children were taken. Whole communities were severely affected and collective grief is a continuing reality in the communities affected  (Link-Up (NSW) Aboriginal Corporation submission 186; supported by Aboriginal Legal Service of WA submission 127 recommendation 11).

This process must include a recognition that the removals affected more than the individuals actually taken, but also the communities they were taken from and the descendants of those taken, all of whom continue to suffer the anguish the removals caused  (Stolen Generations National Workshop 1996 submission 754 page 50).

At the same time, submissions emphasised that the principal victims were the children taken away and that their individual rights to reparations should not be overlooked in the process of making reparation to their families and communities.

There is collective grief; but not comparable to the grief suffered by the individuals who were the subject of the policy and who were deprived of being raised in normal circumstances with their family and community. Nor does compensating communities recognise that individuals’ legal rights have been affected by the policy, and that individuals suffered damage  (Tasmanian Aboriginal Centre submission 325 pages 2-3; supported by NSW Aboriginal Land Council submission 643 page 2 and confidential evidence 163, Victoria).

Claimants
Recommendation 4:  That reparation be made to all who suffered because of forcible removal policies including,
1.	individuals who were forcibly removed as children,
2.	family members who suffered as a result of their removal,
3.	communities which, as a result of the forcible removal of children, suffered cultural and community disintegration, and
4.	descendants of those forcibly removed who, as a result, have been deprived of community ties, culture and language, and links with and entitlements to their traditional land.
Acknowledgment and apology
The first step in any compensation and healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology. Van Boven’s principle 15 concerns ‘satisfaction and guarantees of non-repetition’ including, as necessary,
(a)	Cessation of continuing violations;
(b)	Verification of the facts and full and public disclosure of the truth;
(c)	An official declaration or a judicial decision restoring the dignity, reputation and legal rights of the victim and/or of persons connected with the victim;
(d)	Apology, including public acknowledgment of the facts and acceptance of responsibility;
(e)	Judicial or administrative sanctions against persons responsible for the violations;
(f)	Commemorations and paying tribute to the victims;
(g)	Inclusion in human rights training and history textbooks of an accurate account of the violations committed in the field of human rights and humanitarian law;
(h)	Preventing the recurrence of violations …

For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation (Orentlicher 1994 page 457). For many victims and their families, an accurate and truthful description of past policies and practices and of their consequences is the first requirement of justice and the first step towards healing wounds (Danieli 1992 page 210). Also essential is an acknowledgment of responsibility (Danieli 1992 page 208). Related to calls for truth and acknowledgment of responsibility, the Inquiry has heard demands for apologies to the individuals, families and communities who have survived the removal of Indigenous children.

The Canadian Royal Commission on Aboriginal Peoples recently recommended the establishment of a public inquiry to investigate the Canadian policy of removing Indigenous children to residential schools.  It is proposed that the inquiry should in turn ‘recommend remedial action by governments and the responsible churches … including as appropriate, apologies by those responsible’ in addition to the payment of compensation (1996b Volume 5 page 143).

The Inquiry was told that both governments and non-government agencies, including the churches and missions, should acknowledge their part in the separation of Indigenous families and apologise to the victims. ATSIC submitted, 
The prospect of apologies to indigenous people has been raised on many occasions. There is no uniform view about reparations but there is a consistent view of indigenous people as to the necessity for apologies … an apology must be matched by a commitment to rectify past mistakes through reparation and compensation.

… ATSIC considers that reconciliation must surely begin with this one elementary condition: an apology.  Indigenous people may then feel that the issue of separation, and the injustices it caused, have been acknowledged by those present-day government and non-government organisations who are directly connected with organisations responsible for past policies and practices (submission 684 page 32).

‘[T]he assimilation policy that operated in this country be [should be] denounced officially by governments across the country’ (Aboriginal Legal Rights Movement submission 484 recommendation 18); ‘public acknowledgment and apologies [should] take place from the Australian population including especially government organisations, church bodies’ (SA Aboriginal Child Care Agency submission 347 recommendation 5). Link-Up (NSW) called for ‘a full public disclosure of the facts of separation’, admissions of responsibility from governments ‘for the development and implementation of the policies and practices of separation’, admissions of responsibility from the churches for their roles and extension of apologies to the survivors for their ‘engagement in practices of genocide, forced assimilation and ethnic cleansing’ (submission 186). The Aboriginal Legal Service of WA recommended,

That the State government [and the Commonwealth government] make a public statement in Parliament acknowledging the devastating impact of the policies and practices of removing Aboriginal children from their families on individuals, their families and the Aboriginal community, and express regret, and apologise on behalf of the people of Western Australia [and Australia] (submission 127 recommendations 3 and 5).

Government statements
Australian governments have only very recently admitted the history of forcible removals and its effects. While governments recognise the harms suffered, as the following statements evidence, only the Government of New South Wales has extended an apology. 

Addressing the United Nations Human Rights Committee in 1988, Australia’s Representative stated,

[Australia] acknowledged that the Public Policy regarding the care of Aboriginal children, particularly during the post-war period, had been a serious mistake (quoted by Aboriginal Legal Rights Movement submission 484 on page 18).
Launching the 1993 Year of the World’s Indigenous People, then Prime Minister Paul Keating stated,

It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.

It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask – how would I feel if this were done to me. As a consequence, we failed to see that what we were doing degraded all of us  (Redfern, 10 December 1992).

The South Australian Minister for Aboriginal Affairs, Michael Armitage, stated in the House of Assembly in September 1994,

I remind members of the appalling and breathtakingly paternalistic practice of taking Aboriginal children from their families, ostensibly to provide for them in a so-called ‘better fashion’ …

There would be few Aboriginal people beyond school age who were not raised without the threat, if not the actuality of family dislocation.  It will take decades yet before the consequences of these policies are worked through.

The consequences of past mistakes are carried from generation to generation. Reconciliation appropriately involves an honest acknowledgment of the impact of colonisation, both historically and up to the current day  (quoted by Aboriginal Legal Rights Movement submission 484 on page 48).

In its submission to the Inquiry, the Tasmanian Government stated that it,

… recognises that past legislation, practices and policies have adversely affected Aboriginal people. This has had implications to Aboriginal people in Tasmania over successive generations  (final submission page i).

The Queensland Government submitted,

The extent of government control over the lives of the indigenous people of the State that occurred in the past, and the associated high degree of government and institutional interference with indigenous family life, have had wide-ranging and often tragic impacts on Aboriginal and Torres Strait Islander people in Queensland over successive generations.

Many of those policies and practices, and the beliefs that engendered them, are not acceptable today  (interim submission page 2).
The Victorian Government submitted,

The Government has acknowledged before the Commissioner, that the early history of child welfare in Victoria is hallmarked by policies and practices which evolved in accordance with the views of the Victorian community of that time. Many of these approaches to child welfare would be unacceptable today   (final submission page 3).

On 14 November 1996, New South Wales Premier Bob Carr, in a speech on reconciliation in the Legislative Assembly, stated that removals were ‘done in the name of the State and in the name of this Parliament’.

That is why, Mr Speaker, I re-affirm in this place, formally and solemnly as Premier, on behalf of the government and people of New South Wales, our apology to Aboriginal people.

And I invite the House to join with me in that apology, and in doing so, acknowledge, with deep regret Parliament’s own role in endorsing policies and actions of successive governments which devastated Aboriginal communities and inflicted, and continues to inflict, grief and suffering upon Aboriginal families and communities.

I extend this apology as an essential step in the process of reconciliation.

	Acknowledgment and apology – Parliaments and police forces
Recommendation 5a:  	  That all Australian Parliaments 
1.	officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal,
2.	negotiate with the Aboriginal and Torres Strait Islander Commission a form of words for official apologies to Indigenous individuals, families and communities and extend those apologies with wide and culturally appropriate publicity, and
3.	make appropriate reparation as detailed in following recommendations. 
Recommendation 5b:  That State and Territory police forces, having played a prominent role in the implementation of the laws and policies of forcible removal, acknowledge that role and, in consultation with the Aboriginal and Torres Strait Islander Commission, make such formal apologies and participate in such commemorations as are determined.

Submissions to the Inquiry similarly called on the churches to acknowledge their respective roles and extend apologies to the children, their families and communities.
[That] Churches acknowledge what happened, support Aboriginal initiatives to begin healing process, open up their archives providing information about people’s families and resolve any outstanding land issues with relevant communities (Broome and Derby Working Groups submission 518 recommendation 3.2.8).

Church statements
Most churches recognise the devastating effects of the forcible removal policies and practices.

Centacare Catholic Community Services on behalf of the NSW Catholic Church’s diocesan welfare agencies deeply regrets the enormous suffering to individuals and the aboriginal people as a community as a result of the massive social dislocation caused by the removal of Aboriginal and Torres Strait Islander children from their families  (Centacare Catholic Community Service submission 478 page 5).

There is no doubt that the policy of taking children from their natural families has had devastating effects on many of the people who were taken away, on their families and on the community as a whole. Although many of the people have since become leaders in the Aboriginal community, many others have been devastated by the experience …

As well, the second generation have felt the effects of the deprivation suffered by the generation that was taken away. For them the loss also of parenting, relationship and life-skills, of how to give and receive love has been devastating. There has been a loss of identity, of self-respect and hope  (Uniting Church in Australia first submission 457 page 10).

Agencies of the Catholic Church in Australia have acknowledged their role and its effects while other branches have extended apologies in submissions to the Inquiry. On 18 July 1996 representatives from three national groups of the Roman Catholic Church delivered a Joint Statement to the Inquiry.

On behalf of our constituent national groups we sincerely and deeply regret any involvement Church agencies had in any injustices that have been visited upon Aboriginal and Torres Strait Islander families.  It is apparent with hindsight that some Church agencies, along with other non-government organisations, played a role in the implementation of government policies and legislation which led to the separation of many children from their families and communities.

We sincerely regret that some of the Church’s child welfare services and organisations, which were amongst those non-government organisations in Australia that provided residential services and institutional care to Aboriginal and Torres Strait Islander children forcibly removed from their families by agents of the state, assisted governments’ implement assimilationist policies and practices.

To the best of our knowledge, at no time have the Church’s child welfare services and organisations been given any legislative power or authority to forcibly or physically remove any children from their families … We do accept that there were cases where the actions of Church child welfare services and organisations were instrumental in keeping children separate from their families and in this respect the Church holds some responsibility in playing a role for the state to keep these children separate from their families  (Chairman, Bishops’ Committee for Social Welfare, Chairperson, National Aboriginal and Torres Strait Islander Catholic Council and National Director, Australian Catholic Social Welfare Commission, extract from page 1).

We Pallottines freely admit and regret our mistakes in this area. Our attitudes were in some ways typical of the prevailing mindset of the general population. We deeply regret every hurt visited on Aboriginal and Islander people who have been taken from their heritage of family, community, culture and language. We apologise for any role which any of our group, however well meaning, might have played in such activities (Society of the Catholic Apostolate  (Pallottines) submission 433 page 1).

We are also mindful of the role our order played in the devastation that is now known as the removal of the Stolen Generation and we are endeavouring to come to terms ourselves with the hurt and pain that this policy of assimilation has caused those Aboriginal people that were removed from their families and the members of the families that were left behind to grieve their loss.  In the spirit of Reconciliation we offer unreservedly our apologies for any hurt our role in this process has caused and offer whatever resources we have available to us to help people come to terms with the hurt that has occurred  (Kimberley Sisters of St John of God submission 521 page 6).

To those who have suffered personal deprivation and hurt in Church institutions because of the effects of this policy, the Church of this Diocese unreservedly apologizes. Further, She regrets the great suffering that continues in the hearts of some people and extends to them a compassionate wish for peace and reconciliation  (Roman Catholic Church of the Diocese of Broome submission 519 page 3).

The Anglican Church Social Responsibilities Commission referred to apologies extended by other parts of the Anglican Church of Australia.

The SRC joins with other parts of the Anglican Church of Australia in offering its unreserved apology for the involvement of Anglicans, both individually and corporately, in the policies and practices that allowed the separation of Aboriginal and Torres Strait Island children from their families.  It may be that the church had no direct control over the policies themselves.  It may be that its members and agencies, to the extent that they were involved, acted as part of already existing networks of welfare arrangements.  

It may be that many of those involved believed that they were acting in the best interests of the children concerned.  It may also be that many of them did not understand the full implications of their actions, performing only the tasks immediately in front of them. The SRC does not wish to impute any particular motives to those involved.  It simply states that no amount of explanation can detract from the now observable consequences of those misguided policies and practices. A great wrong has been done to the indigenous people of Australia.  It is for participation in that wrong that this apology is offered  (Anglican Church Social Responsibilities Commission submission 525 pages 3-4).

The National Assembly of the Uniting Church passed the following resolution in September 1996.

… that Standing Committee, on behalf of the Uniting Church in Australia, acknowledge to the Aboriginal community:
•	the trauma and on-going harm caused to individuals, families, the Aboriginal community as a whole and the entire Australian community by the practice of separating Aboriginal children from their parents and raising them in institutions, foster homes or adoptive homes;
•	that the church thought it was acting in a loving way by providing them with homes, but was blind to the racist assumptions that underlay the policy and practice;
•	the fact that these assumptions, spoken and unspoken conveyed destructive, negative messages to the children about Aboriginal culture and their Aboriginality;
•	that fact that although it was the intention and policy of the church to provide children who had been separated from their parents with a loving, secure environment in which they were encouraged to develop their gifts and graces, and although faithful women and men who worked in the institutions often provided such an atmosphere, there were also times when the reality contradicted the intention and goal, and where children even met violence and abuse at the hands of some of the very staff whom they should have been able to trust;
•	that there were many good, faithful and self-sacrificing houseparents, foster parents and adoptive parents who provided loving homes for the children in their care, and encouraged their self-esteem, their growth, their pride in Aboriginal culture and their achievement; many of the people who grew up in the institutions have continued a close relationship with former house parents until the present time  (second submission 457).
The Federal Aborigines Board of the Churches of Christ, the Anglican Church Diocese of Perth and the Baptist Church of WA acknowledged their complicity as did the Catholic Social Welfare Commission (submission 479 page 2).

Churches of Christ recognize and acknowledge the pain suffered by the children and parents who experienced separation. We recognise our complicity in a system which we understood at the time to be beneficial but now is seen to have been destructive. To the degree which we were a part of the destruction processes we seek forgiveness and offer our repentance. We also acknowledge that we sought to do what was most appropriate and for some the experience was positive and for such people we affirm the outcome   (Churches of Christ Federal Aborigines Board submission 411 page 8).

It must be acknowledged that, no matter how well intentioned the motives of the Church were in its involvement in separating children from their families, it’s complicity has contributed to the dislocation of the people concerned, and therefore to their loss of land, language, and identity.

It is evident that the present high rate of continuing social dislocation and Aboriginal imprisonment is direct result of the separation of children from their families in which the Church was complicit  (Anglican Church of Australia, Diocese of Perth submission 410 page 2).

In retrospect, however, Baptist Churches of Western Australia acknowledges that its efforts to reach out with Christian compassion, practical care and spiritual help were unfortunately combined with an unconscious complicity with the Government policy of assimilation of ‘part-Aboriginal’ people. While rightly deploring the degrading impact of European settlement upon Aboriginal peoples, and taking no part in the removal of children, Baptist Churches of Western Australia failed to provide a clear prophetic voice to challenge the Government policies of the day and the general community philosophy of racial superiority. We failed to publicly proclaim, in respect of Aboriginal and Islander peoples, the Biblical view of the intrinsic worth of all people as individuals made in God’s image  (Baptist Churches of Western Australia submission 674 page 2).

The Australian Association of Social Workers also expressed its regrets.

We know and sincerely regret that social workers, and unqualified workers known as ‘Social Workers’, were actively involved in the removal of aboriginal children from their families even up to relatively recent times. As far as we are aware, our professional association has not made any comment or apology about the involvement of social workers in the separation of families which has had such a dramatic impact on aboriginal communities …
The Association acknowledges that social workers were involved in the forced separation of Aboriginal and Torres Strait Islander children from their families in every state and territory in Australia during this century  (Australian Association of Social Workers submission 721 pages 1 and 2).

Doomadgee Inc is the successor of the Aborigines Inland Mission at Doomadgee in Queensland.

… we are sensitive to the perception of some Doomadgee Aborigines that missionaries were sometimes too firm in their administration of discipline, or too assertive in their presentation of the Christian gospel. To these Aborigines we express our sincere apologies. The desire of all the missionaries was to achieve the very best outcomes for Aborigines and anything perceived by them to fall short of this is a matter of deep regret to us  (Doomadgee (Inc) submission 78 page 8).

	Acknowledgment and apology – Churches and others
Recommendation 6: 	That churches and other non-government agencies which played a role in the administration of the laws and policies under which Indigenous children were forcibly removed acknowledge that role and in consultation with the Aboriginal and Torres Strait Islander Commission make such formal apologies and participate in such commemorations as may be determined.

Comparable experience suggests that satisfaction should go beyond a single instance of acknowledgment and apology. Victims should be appropriately commemorated (Correa 1992 page 1478). The Inquiry received a number of submissions as to forms of commemoration.

Public tribute must be paid to the survivors, and those who have not survived the policies and practices of separation. Public recognition of the ongoing courage and determination of Aboriginal people to resist the genocidal policies of separation is essential. Commemoration can and should take place at different levels. Nationally, there should be a ‘Sorry Day’ commemorating Aboriginal survival of the holocaust which is accorded the same recognition as ANZAC day. On a local level, communities may wish to establish commemorative places, or have a ‘Welcome Home Day’  (Link-Up (NSW) submission 186).

Other proposals concerning forms of commemoration include establishing education centres, naming of streets, endowing scholarships, memorial services and monuments (see also van Boven 1992 page 15). Commentators have observed that commemoration is important not only for victims but also for the society as a whole.
Commemorations can fill the vacuum with creative responses and may help heal the rupture not only internally but also the rupture the victimization created between the survivors and their society.  It is a shared context, shared mourning, shared memory. The memory is preserved; the nation has transformed it into part of its consciousness. The nation shares the horrible pain  (Danieli 1992 page 210).

Commemoration
Recommendation 7a:	That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, arrange for a national ‘Sorry Day’ to be celebrated each year to commemorate the history of forcible removals and its effects.
Recommendation 7b:	That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, seek proposals for further commemorating the individuals, families and communities affected by forcible removal at the local and regional levels. That proposals be implemented when a widespread consensus within the Indigenous community has been reached.
Guarantees against repetition
UN Special Rapporteur van Boven identified a need for guarantees to prevent any repetition of the gross violations of human rights. Appropriate measures must be implemented to ensure that Indigenous families and communities in Australia never again suffer the forcible removal of their children simply because of their race. Governments and responsible agencies are encouraged to consider sympathetically and respond to proposals submitted by Indigenous organisations, communities and individuals with a view to the prevention of repetition.

Teaching the history of the removal policies to all school students was widely supported in submissions to the Inquiry. The importance of a wider public education campaign was emphasised, as was the need for professionals working with Indigenous children and families to develop a complete understanding of the history and effects of forcible removals.

Justice requires that the wider Australia community be informed about these policies and practices, and be informed about the resolute resistance Aboriginal people have continuously maintained. We want the wider community, Aboriginal and non-Aboriginal alike, to be informed about and recognise not only the adversities we have endured as a result of separations, but the courage and strength we have had in surviving as a people and in seeking to reunite with our people despite years of detention in non-Aboriginal environments.  It is equally important for it to be recognised that separation policy and practice is not something that happened a long time ago, it is not ancient history. Rather it has continued in various forms and guises up to the present and for the future of many Aboriginals  (Link-Up (NSW) submission 186 page 6). 

Specific proposals to the Inquiry included,

•	rewriting of school textbooks and official histories to include the policies and practices of separation;
•	education for those working with Aboriginal people with respect to the issues and effects of separation, including the judiciary, solicitors, social service workers, doctors, psychiatrists, health workers, mental health workers, teachers and other educators, prison workers and archivists;
•	general community education  (Link-Up (NSW) submission 186 page 6).

That the history of forced family separations of Aboriginal and Islander children be made more widely known through whatever avenues available eg school education curriculums (including arts, drama), media, publication of the history of separations and individual stories (SAACCA Forum Inc submission 347 recommendation 4). 
The history of removal of children be incorporated into Aboriginal studies programs and that these be compulsory for all students in all schools  (Broome and Derby Working Groups submission 518 recommendation 3.2.7).

Truth and reconciliation processes established in Chile, El Salvador and Honduras to address the impacts of periods of gross and systematic human rights violations have also emphasised the importance of general education to reinforce the values of human rights in the culture of the nation (Correa 1992 page 1478). The Truth and Reconciliation Commission in South Africa has expressed a similar view.

School education
Recommendation 8a:	That State and Territory Governments ensure that primary and secondary school curricula include substantial compulsory modules on the history and continuing effects of forcible removal. 
Recommendation 8b:	That the Australian Institute of Aboriginal and Torres Strait Islander Studies be funded by the Commonwealth to develop these modules.

Professional training
Recommendation 9a:	That all professionals who work with Indigenous children, families and communities receive in-service training about the history and effects of forcible removal.
Recommendation 9b:	That all under-graduates and trainees in relevant professions receive, as part of their core curriculum, education about the history and effects of forcible removal.

While Australia ratified the 1948 Genocide Convention, its provisions have not been incorporated into Australian law. The Genocide Act 1949 (Cth) merely approved ratification of the Convention and extended its provisions to external territories. Australian service personnel engaged in conflicts overseas are covered by its provisions but not those working within Australia.  In 1992 the Human Rights Sub-Committee of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade recommended that the Australian Government introduce legislation to implement the Genocide Convention fully. The effect of implementation would be to create a criminal offence of genocide, including attempting to commit genocide, complicity in the crime of genocide and inciting others to commit genocide. Effective penalties would have to be provided.  Implementation would establish a right to compensation for victims of genocide.

Genocide Convention
Recommendation 10:	That the Commonwealth legislate to implement the Genocide Convention with full domestic effect.
Land, culture and language restitution
The purpose of restitution is to re-establish, to the extent possible, the situation that existed prior to the perpetration of gross violations of human rights. The children who were removed have typically lost the use of their languages, been denied cultural knowledge and inclusion, been deprived of opportunities to take on cultural responsibilities and are often unable to assert their native title rights.

Many stolen children will be unable to satisfy the requirement of a continuing relationship with their traditional land on their own.

It is undeniable that the forced removal of Aboriginal people from their families and the legacy of assimilation policies will have an impact on the ability of some Aboriginal people to claim native title rights … NSWALC would expect the courts to approach the issue of connection to land in a manner which is sensitive to the historical realities of Aboriginal people and understanding of the ability of Aboriginal communities to rebuild despite the impact of policies aimed at their destruction. NSWALC believes the Inquiry into the removal of Aboriginal children should encourage such sensitivity and understanding   (NSW Aboriginal Land Council submission 643 page 3).

However, native title is communal in nature and traditional Law recognises the authority of traditional owners to define the content and scope of that title.  In other words, the traditional owners or claimants are entitled to determine whether or not to include a person removed in childhood.

The content of a particular group’s native title, including what it has to say about the rights of particular individuals within the group, is determined by the indigenous group concerned according to their traditional law and custom, not the common law.

[Thus] it will be the relevant indigenous group which determines according to its traditional law and customs whether a particular individual who was taken away from their community and their land continues to enjoy native title rights and interests in relation to that land in common with the other members of the community  (Cape York Land Council submission 576).

Traditional owners and claimant groups should, of course, remain free to define their membership to include people forcibly removed from their families, thereby including these people among those entitled to the benefits of a successful statutory or native title land claim.

Returning to country can be a critical step in the reunification and healing process for people removed as children. However, it is fraught with difficulties.

Many found the task of re-establishing themselves in their country was achievable, but others did not. Communities sometimes found it difficult to accept people who had spent so long away from country back into their social networks on a basis of equality with those who had not been removed. People who had suffered the trauma of removal often encountered the double jeopardy of suspicion, mistrust or even blame upon their return, despite the location of real responsibility in the governments of the day  (Cape York Land Council submission 576).

Support is required to facilitate return. This support has two key aspects. First the ‘returnee’ must be prepared for his or her return. This preparation would usually include some information about appropriate behaviour. Second the community needs to be prepared to receive the person returning. This preparation would usually include provision of information about the policies and effects of forcible removal. Where support is available, the return is more likely to be a success and the traditional owners are more likely to accept the ‘returnee’ and reintegrate him or her into the community. Developing community genealogies will assist community leaders in their decision making on the return of people affected by removals.

Assistance should be given to those wishing to return to their and their families’ traditional country and to assist them with negotiations with the Native Title holders of that country  (Broome and Derby Working Groups submission 518 recommendation 3.2.2).

Traditional owners should be assisted to decide whether, and to what extent, they can include people who were removed as children.  In particular, they need reliable information about the history of forcible removal, its effects and the involvement of particular individuals.

Assistance to return to country
Recommendation 11:	That the Council of Australian Governments ensure that appropriate Indigenous organisations are adequately funded to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop community genealogies to establish membership of people affected by forcible removal.

Many people affected by the removal policies may be unable to return to their traditional country.  In many cases the policies of removal and segregation have successfully destroyed their capacity to maintain their connection to their land.  In some cases, traditional owners will be unwilling to reintegrate former community members. People who by reason of their removal are now unable to enjoy native title rights should be able to establish that loss in any claim for monetary compensation. The importance of compensating such loss was emphasised in numerous submissions to the Inquiry.
Grants of land and/or housing should be made to families of those who have lost access to traditional land and such land could be allocated in areas where these people grew up and with which they now identify  (Broome and Derby Working Groups submission 518 recommendation 3.2.1).

I think compensation for me would be something like a good land acquisition where I could call my own and start the cycle of building good strong foundations for Aboriginal families. Because the whole thing started from people coming to this country and stealing the land, and then everything fell apart from then on. So I think for people who have been dispossessed of land, but more importantly dispossessed of our identities and dispossessed of where we came from … I think to give us compensation in the form of some land acquisition would go very well into helping start stable family relationships and stable generations from here on in.
Confidential evidence 696, New South Wales.

What I’d like to have – I’d like to have me own house, me own block of land. Like, I figure they owe me that much.  I’ve given most of my life, surely they can pay for that. Maybe if I was with me family I’d have a decent bank account instead of one with a dollar sixty-seven credit or something like that, or overdraft.  I want me own block of land, something that I don’t have to pay for again. Something I can call mine and no-one can take it away, because I haven’t had that yet.
Confidential evidence 146, Victoria.

[T]he people who have become landless … partly due to this kind of policy could be compensated by assistance to have a home and land of their own or for their family (Jack Goodluck, former Minster in the Uniting Church and Superintendent of Croker Island, evidence 119).

Other recommendations to the Inquiry have drawn attention to the need for broader measures of ‘cultural restitution’.

Cultural and language education centres, meeting centres and land acquisition are the kind of reparations and facilities that community opinion indicates may be appropriate as recompense for past suffering and dislocation  (ALRM submission 484 at 22; see also Cape York Land Council submission 576).

Full support be provided to Kimberley Aboriginal organisations promoting Aboriginal culture, language, identity and history  (Broome and Derby Working Groups submission 518 recommendation 3.3.3).

The significance of Indigenous languages to the maintenance of family relations and the preservation and transmission of cultures was not lost on missionaries and protectors. The speaking of languages was frequently prohibited.
People were also punished for speaking language.  In many places language became something that had to be hidden; we were taught to be ashamed if we spoke anything other than English  (Kimberley Language Resource Centre submission 759 page 2).

[The old people] didn’t like you listening in and wouldn’t explain things to you, what it was about … Then again they were frightened of white-fellas, Superintendents [-] they were very very frightened … If old people tried to teach the younger people, they were sent to Palm Island, at the pleasure of the Superintendent in those days.  It was a crime to teach us languages, that’s why we were going backwards … The old people were frightened of getting sent away … That’s why a lot of our people were frightened to teach us our language.  It was fear  (quoted by Aird 1996 on page 14).

The loss of language is intimately connected with the loss of identity for those forcibly removed and their descendants.

The story of language loss is the story of separation. With the removal of children from their families and displacement to missions, authorities effectively isolated these children from the nurturing and supportive structures of all aspects of their culture.

It is well known that the mission children were not only discouraged from speaking their native languages, but in many cases physically punished for doing so.

‘What must be remembered is that language is not simply a tool for everyday communication, but through recording of stories, songs, legends, poetry and lore, holds the key to a people’s history and opens the door to cultural and spiritual understanding  (Aboriginal and Torres Strait Islander Corporation of Languages submission 854 page 2).

The Kimberley Language Resource Centre submitted,

Language and identity are closely linked, and for many of us our language is a symbol of identity central to our self-esteem, cultural respect and social identification. Our languages provide more than just a way to talk to each other. They provide a way for us to interpret the reality we see around us. The words we use to name things, to describe feelings, understandings and each other, carry meanings particular to us.  If we lose these words, we lose part of ourselves …

… when our children were stolen from our families one of the things that happened was that the language learning cycles were broken. Transmission from generation to generation is a crucial link in language maintenance. Taking the children away broke this link  (submission 759 page 1).

The Royal Commission into Aboriginal Deaths in Custody commended the establishment of language and culture centres and recommended that governments support these Indigenous initiatives (Recommendation 56). A network of regional language centres is now established with funding administered by ATSIC under the Aboriginal and Torres Strait Islander Language Identification Program (ATSILIP). The Program was reviewed for ATSIC in 1995 by the National Language and Literacy Institute of Australia. The Review ‘strongly recommended’ a continuation of the program to the end of 1999-2000 ‘with an expectation that it may need to be extended further, given the range of languages involved and the work that needs to be done’ (Recommendation A.1). The Program was also strongly endorsed in 1996 by the National Board of Employment, Education and Training, with a similar recommendation for extension. Core tasks of the language centres are language recording and maintenance and teaching languages.

The existing language centre model is clearly appropriate for the task of assisting people affected by forcible removal to recover their languages. Local and regional negotiations will be required to determine whether the language centre is the appropriate body to take on other tasks envisaged by the Inquiry, notably that of recording and storing personal testimonies of forcible removal and its effects and that of archiving local history records. The generic term ‘language, culture and history centres’ is used to indicate the range of tasks that need to be performed. Existing language centres may be expanded. Alternatively new institutions may be established.

Language, culture and history centres
Recommendation 12a:	That the Commonwealth expand the funding of Indigenous language, culture and history centres to ensure national coverage at regional level.
Recommendation 12b:	That where the Indigenous community so determines, the regional language, culture and history centre be funded to record and maintain local Indigenous languages and to teach those languages, especially to people whose forcible removal deprived them of opportunities to learn and maintain their language and to their descendants.

The Inquiry has found that a key objective of forcible removals was to sever the link between the child and his or her family, community and culture. For many people the practices used to advance this objective have resulted in an inability to establish their Aboriginality by reference to the frequently applied three-pronged definition. For many purposes proof of Aboriginality now requires (1) proof of descent from the Indigenous peoples of Australia, (2) self-identification as an Indigenous person and (3) acceptance by the Indigenous community as an Indigenous person.

Some people who were forcibly removed and their descendants are not acknowledged as members by their own communities of origin, while others are unable to locate their communities. The application of a definition requiring acceptance as Indigenous by the person’s community must not be permitted to discriminate against the most direct victims of the forcible removal policies.

Indigenous identification
Recommendation 13:	That Indigenous organisations, such as Link-Ups and Aboriginal and Islander Child Care Agencies, which assist those forcibly removed by undertaking family history research be recognised as Indigenous communities for the purposes of certifying descent from the Indigenous peoples of Australia and acceptance as Indigenous by the Indigenous community.

This recommendation extends only to a person’s general acceptance as an Indigenous person.  It does not propose that the organisations mentioned should be authorised to certify membership of a particular Indigenous community for any particular purpose such as Land Council membership. This is entirely a matter for the particular community itself, which may in its discretion rely on the advice of a link-up worker or other organisation.

Monetary compensation
People go on about compensation and all this. And they don’t seem to get the real reason as to why people want some sort of compensation or recognition.  I need to be given a start.  I just need something to make the road that I’m on a little bit easier.
Confidential evidence 441, New South Wales.

On the subject of monetary compensation, van Boven proposed the following principle.

Compensation shall be provided for any economically assessable damage resulting from violations of human rights and humanitarian law, such as:
(a)	Physical or mental harm, including pain, suffering and emotional distress;
(b)	Lost opportunities, including education;
(c)	Material damages and loss of earnings, including loss of earning potential;
(d)	Harm to reputation or dignity;
(e)	Costs required for legal or expert assistance.

There was considerable support among submissions to the Inquiry for the provision of monetary compensation to the victims of forcible removal.

The Commissioners should encourage governments to negotiate financial settlements with groups and individuals on the basis that either financial compensation or reparations to be made available to them as atonement for past and continuing grievances  (Aboriginal Legal Rights Movement (SA) submission 484 page 52; see also Aboriginal Legal Service of WA submission 127 recommendation 11, Broome and Derby Working Groups submission 518 page 1, Stolen Generations National Workshop submission 754 page 50).

All the harms and losses suffered by people affected by forcible removals are recognised under the common law or under contemporary statutory regimes as losses for which compensation can be awarded. People who have suffered these harms and losses should not be denied a remedy just because the perpetrators were mainly governments or because the victimisation was on such a vast scale.

It is NSWALC’s view that individuals who have had wrongs committed against them are entitled to full and proper compensation. Compensation to individuals should at the very least be assessed on the same basis as any other tortious claim. The obligation on governments to pay monetary compensation is not to be shirked because it may be considered politically undesirable or because the requirement to pay compensation may be onerous  (NSW Aboriginal Land Council submission 643 page 1).
The reparations scheme should recognise the full range of harms and losses caused by the removal policies. The Inquiry’s recommendations under term of reference (b) in particular address the losses incurred by Indigenous communities.  Individual victims should also be entitled to measures of restitution and rehabilitation as proposed under term of reference (b). Monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind. Any individual affected by the removal policies should be entitled to make a claim for compensation, including parents, siblings and other family members in appropriate cases. The Inquiry was urged to recognise the full range of damages suffered by the victims of the removal policies.

We recommend that compensation to be paid for the following … :
pain and suffering of the victims and their families
loss of access to their families and their love and support
loss of access to and knowledge of their traditional lands
loss of their Native Title rights
loss of the right to grow up knowing their traditional culture and language
loss of the right to have private property
loss of inheritance rights
loss of freedom
loss of the right to determine their own lives and those of their children
suffering hardship and abuse whilst detained in institutions
suffering racism and discrimination whilst detained in these institutions 
(Broome and Derby Working Groups submission 518 recommendation 3.1.1).

Supreme Courts in both South Australia and the Northern Territory have awarded substantial damages to Aboriginal accident victims for loss of cultural fulfilment.  In Napaluma v Baker in 1982 $10,000 was awarded for loss of cultural fulfilment to an initiated man of 18 whose head injury meant he could take no further part in ceremonies.  In Dixon v Davies in the same year $20,000 was awarded to a boy of 10 who would not be able to be initiated and would therefore lose status and be unable to participate in ceremonies. 

With respect to compensation for loss of native title rights, the Cape York Land Council submitted that,

… at least two heads of damage suggest themselves: specific damages for the loss of actual legal rights, which in this case would be the right to enjoy native title as part of a group, and general damages for the pain and suffering arising from the loss of these particular legal rights  (submission 576).

Where native title rights can be restored, that is where the traditional owners accept the individual as a full participant in enjoyment of the title, no damages should be available.

The heads of damage identified in Recommendation 14 are in line with those proposed by van Boven and adopted in successful human rights litigation in other jurisdictions.

Heads of damage
Recommendation 14:	That monetary compensation be provided to people affected by forcible removal under the following heads.
1.	Racial discrimination.
2.	Arbitrary deprivation of liberty.
3.	Pain and suffering.
4.	Abuse, including physical, sexual and emotional abuse.
5.	Disruption of family life.
6.	Loss of cultural rights and fulfilment.
7.	Loss of native title rights.
8.	Labour exploitation.
9.	Economic loss.
10.	Loss of opportunities.

Civil claims for compensation
Indigenous people are now taking civil damages actions arising from forcible removal. One was commenced in New South Wales by Ms Joy Williams, a woman taken from her mother at birth in 1942 and placed in Bomaderry Children’s Home. She was moved at four to a non-Aboriginal children’s home because she was ‘fair-skinned’. Here visits from her mother ceased because the mother was not told of her whereabouts. The child was told she was an orphan. She complains that she was ill-treated in this home and repeatedly ran away. She was brought up to believe she was ‘white’ and to have a low opinion of Aborigines. But in adolescence she was told she had ‘mud in your veins’ causing severe distress. She opened her veins to examine her blood for mud (Williams 1994 page 501).  In adulthood she suffers severe psychiatric and other ill-health.

Ms Williams claims the Aborigines Welfare Board was her statutory guardian and breached its fiduciary duty to her by denying her her cultural heritage, by failing to protect her from harm and by failing to prepare her for healthy adult life. 
The injuries she now experiences are said to flow from her wrongful removal first from her mother and then from Bomaderry to a non-Aboriginal home. Having overcome a potential problem with the statute of limitations, Ms Williams’ case awaits trial on the issues.

Another action has been commenced against the Commonwealth by two groups of Northern Territory plaintiffs, one group of six and another of three. The first group of six includes the mother of a baby girl removed from her in 1946. The other plaintiffs were forcibly removed as children in the 1920s, 1930s and 1940s. Their complaint is that the Aboriginals Ordinance 1918-1953 which the Commonwealth enacted for the Northern Territory and under which they were removed was invalid because it was contrary to implied constitutional rights, notably an implied right to personal liberty. The complainants seek a declaration to that effect and damages for breach of their constitutional rights and for breach of fiduciary duty. The case was argued in May 1996 before the High Court of Australia. Judgment is awaited.

Difficulties of proof and the expiry of statutory periods of limitation may deny a remedy to many victims of forcible removal. However, the harms they suffered, detailed in Parts 2 and 3 of this report, are recognised heads of damages that can be compensated under Australian law. Relying on the civil courts for remedies, however, is likely to lead to great delay, inequity and inconsistency of outcome. The civil process is daunting and expensive, thus deterring many of those affected.  It will also involved great expense for governments to defend these claims.

In our experience the separation issue is a very private and personal one for the people concerned. The stress and trauma of a court case and the resulting loss of privacy is likely to deter many Aboriginal people from bringing a legal action against the Government  (Tasmanian Aboriginal Centre first submission 325 page 11).

Ex-gratia payments
In its submission to the Inquiry the Commonwealth Government proposed that ex-gratia payments might be made to those affected by the forcible removal policies provided that certain criteria and principles could be satisfied (submission page 27).

By definition, ex-gratia compensation is at the discretion of the Government (subject to parliamentary authorisation of appropriations) and it is neither possible nor desirable to develop binding rules  (submission page 27).

The Commonwealth submitted that the application of three principles in particular to the facts revealed by the Inquiry would preclude the ex-gratia payment of compensation in this case.
•	Difficulties in identifying the persons eligible for compensation.
•	Difficulties in estimating the amount of loss in monetary terms.
•	Negative consequences for the wider community.

The Inquiry considers that the Commonwealth has overstated the difficulties in identifying with reasonable certainty people who have suffered loss. The Inquiry has found that in different ways individuals, families and communities have suffered as a result of forced removals. Different forms of reparation and different procedures for determining compensation can be appropriate to reflect particular experiences of, and needs arising from, separation of families. This is consistent with the approach of the United Nations Special Rapporteur van Boven and the Canadian Royal Commission on Aboriginal Peoples in its report on the High Arctic Relocation.
 
The Inquiry’s approach is based on a human rights framework.  It recognises that in most cases the right to claim reparation in the form of monetary compensation will be limited to individuals and families. Communities should receive reparation for the harm they have suffered in the form of restitution, rehabilitation, satisfaction and guarantees against repetition. The class of persons eligible for compensation therefore can be specified with reasonable certainty.

The Commonwealth Government also submitted that gaps and deficiencies in records would render the identification of persons within the class problematic.  In the Inquiry’s view, it would be unjust to exclude from compensation any individual who has been a victim of forcible removal merely because of the unsatisfactory state of his or her records which have been at all times the preserve of government and delegated carers.  It would also be unjust to refuse compensation to those whose records have survived and who can establish a claim. Despite gaps and deficiencies, extensive records relating to forcible removals have survived. Where an individual can establish that he or she suffered harm as a result of forcible removal, governments have an obligation to provide compensation.

The second Commonwealth difficulty concerned estimating the monetary value of loss. The Commonwealth submitted that ‘[t]here is no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles’. Most elements of the harm experienced by the victims of forcible removal are recognised heads of compensation in Australian civil damages law. The same principles should apply to quantification as would apply in the civil courts.  It is difficult to quantify damages for loss of a limb in a motor vehicle accident or for the psychological injury incurred. Yet the difficulty does not prevent civil courts assessing tortious damages in these kinds of cases every day.

Even where Australian law does not presently recognise a right to reparations, as for gross violations of human rights, there are numerous precedents which should guide Australian developments. For example, under the Alien Torts Claims Act United States courts frequently award damages to victims of gross violations of human rights, as well as to their estates and to close family members. 
The Inter-American Court of Human Rights on numerous occasions has quantified compensatory damages to be awarded to the families of victims of gross violations of human rights.

In a situation with parallels to that dealt with by this Inquiry, Swiss Romany victims of forcible child removal have been awarded a lump sum amount by way of compensation. From 1926 until 1972 the organisation ‘Children of the Road’, with Swiss Government approval, aimed to protect the children of travelling people, particularly the Roma people (sometimes disparagingly called ‘Gypsies’). This ‘protection’ involved the enforced settlement of many children and the separation of 619 from their families. Upon the dissolution of Children of the Road, its parent organisation officially apologised to the Romany community and ‘has set about compensating the victims, a total amount of SF 11 million having been divided among almost 1,900 victims’  (Switzerland’s periodic report to the Human Rights Committee under the International Covenant on Civil and Political Rights, UN Document CCPR/C/81/Add.8 page 115).

As to the Commonwealth Government’s third point of particular difficulty, the Inquiry does not agree that payment of compensation would have negative consequences for the wider community. The Commonwealth argues that the forcible removal laws are only one example of laws later discredited. This understates the enormity of the devastation wrought and the significance of its continuing effects on the well-being of all Indigenous communities. A distinction should be made between a subsequent recognition that public policy was poorly judged and a public policy in breach of fundamental human rights. Systematic racial discrimination and genocide must not be trivialised and Australia’s obligation under international law to make reparations must not be ignored.

Far from being socially divisive, reparations are essential to the process of reconciliation. The Chilean National Commission for Truth and Reconciliation was established to investigate gross human rights violations under the Pinochet dictatorship. A member of that Commission has noted that,

[S]ociety cannot simply block out a chapter of its history; it cannot deny the facts of its past, however differently these may be interpreted.  Inevitably, the void would be filled with lies or with conflicting, confusing versions of the past. A nation’s unity depends on a shared identity, which in turn depends largely on a shared memory. The truth also brings a measure of healthy social catharsis and helps to prevent the past from reoccurring  (Zalaquett 1992 page 1433).

A national compensation fund
The Inquiry received many submissions addressing the means by which compensation should be determined and distributed. A number of submissions call for the establishment of a specialist mechanism to adjudicate on compensation for victims of the removal policies. These submissions refer to the unfairness of requiring victims to pursue their claims through the court system.

It is a monstrous and callous policy which relies on court processes to deal with the effect of a government policy of displacement of Aboriginal children. To avoid simplifying the remedy process for Aborigines affected by the displacement policy, exposing them instead to the adversarial civil system with its onus of proof, causation and technical rules of evidence, is to exacerbate the grief.  If governments of the day caused the problem, it is the responsibility of governments of today to fix the problem. The purpose of action for displaced children and families should be to alleviate the pain … The tribunals should be run on a fairly informal basis, without having to adhere to the rule of evidence or court procedure and protocol  (Tasmanian Aboriginal Centre submission 345 pages 12 and 14).

That the Commonwealth and State governments establish a Task Force which has a majority of Aboriginal representation to develop a non-technical, expeditious and effective mechanism to distribute monetary compensation to all individuals, families and communities affected by the removal of Aboriginal children from their families under the assimilation policies  (Aboriginal Legal Service of WA submission 127 recommendation 12).

In relation to the compensation issue in general, we would urge the Commission not to recommend a legalistic approach in determining the entitlement to compensation of Aboriginal persons affected by forced family separations … The few cases initiated to date by Aboriginal plaintiffs seeking redress for their separation from their families have become bogged down in procedural matters … Court actions are always expensive … [There are] difficulties in quantifying ‘damage’ for compensation issues. Clearly any attempt to quantify the pain and suffering and psychological problems brought about by government assimilation and integration policies is fraught with difficulty  (Tasmanian Aboriginal Centre submission 345 pages 12-13).

There was also support for the establishment of a fund to which affected people could apply for compensation.

[C]ompensation should be paid in non-taxable lump-sums to individuals. Such payments to be assessed against a scale defining categories of persons affected by these policies and practices of removal. [C]ompensation should be paid from a regional trust fund with a Kimberley Aboriginal Board of management, funded by the State and Federal Governments, ex-missions and commercial and mining interests in the Kimberley.  A levy could be paid to the trust fund by mining and business interests operating in the region. [[I]ndividuals could apply to the trust fund which would assess each application  (Broome and Derby Working Groups submission 518 recommendation 3.1.2).

In its submission to the Inquiry the Commonwealth Government expressed a concern that different jurisdictions would be likely to differ in their decisions on compensation, thus causing inequity as between claimants (page 31). To overcome the pitfalls of costly, time-consuming litigation and possible inconsistency of results, the Inquiry proposes, as an alternative to litigation, a statutory compensation mechanism to determine claims in accordance with procedures designed to ensure cultural appropriateness, minimum formality and expedition.

The major church organisations which played a role in forcible removal by accommodating the children should be encouraged to contribute to this fund should they so choose.

National Compensation Fund
Recommendation 15:	That the Council of Australian Governments establish a joint National Compensation Fund.

Contributions to the Fund must be over and above existing funding for services and programs to Indigenous people and communities.

It is repugnant, unjust and unprincipled for reparation payments to be met through offsets to allocations for indigenous programs. Compensation should be met by payments specifically distinguished from these appropriations    (ATSIC submission 684 page 34).

NSWALC believes great care should be taken in labelling certain measures as a form of compensation … [T]o suggest that improved delivery of service can be a form of ‘compensation’ for wrongs committed against Indigenous peoples is inappropriate. Services such as health, education and housing are basic human rights which Aboriginal people are entitled to enjoy to the same extent as other citizens … Aboriginal people should not have to bargain for essential services by foregoing compensation, nor should the delivery of essential services be seen as recompense for past wrongs. These services should be delivered regardless of any compensation that may be recommended by the Inquiry   (NSW Aboriginal Land Council submission 643 page 2).

A Board (or similar) will be needed to administer the Fund, consider claims and award monetary compensation. This Board must include Indigenous members and be chaired by an Indigenous person.  It is likely that the contributing governments will desire some representation on the Board, while simultaneously sharing an interest in keeping membership to a minimum. The make-up of the Board is ultimately a matter for the Council of Australian Governments.
National Compensation Fund Board
Recommendation 16a:	That the Council of Australian Governments establish a Board to administer the National Compensation Fund.

Recommendation 16b:	That the Board be constituted by both Indigenous and non-Indigenous people appointed in consultation with Indigenous organisations in each State and Territory having particular responsibilities to people forcibly removed in childhood and their families. That the majority of members be Indigenous people and that the Board be chaired by an Indigenous person.

Procedural principles
Some fundamental procedural principles are necessary to ensure that monetary compensation is distributed effectively and equitably. Guidance is provided in this respect by internationally recognised principles, including those of van Boven.

Whatever compensation mechanism is established, culturally appropriate assessment criteria and procedures which are expeditious, non-confrontational and non-threatening and which respect and accommodate cultural and linguistic needs, must be applied in the determination of compensation claims (van Boven 1992 pages 13-14, Lutz 1989 page 210).

The experience of victims of the Shoah (Holocaust) suggests that it can take some time before victims are mentally capable of filing claims or accepting compensation (van Boven 1992 page 14). Lutz has noted that,

[F]ormer victims are not likely to focus immediately on seeking compensation, especially in the years just following their persecution. Their primary concern during that period will be to rebuild their lives. Once physical health needs are addressed, it may take years for a former victim to recognize that he or she has unresolved mental health problems or is unable to work at his or her previous occupational level  (1989 pages 207-8).

In this connection, Professor van Boven has commented,

The principle should prevail that claims relating to reparations for gross violations of human rights are linked to the most serious crimes to which, according to the authoritative legal opinion, statutory limitations shall not apply. Moreover, it is well-established that for many victims of gross violations of human rights, the passage of time has no attenuating effect; on the contrary, there is an increase in post-traumatic stress, requiring all necessary material, medical, psychological and social assistance and support over a long period of time  (van Boven 1993 para 135).
This approach is confirmed by the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968, but not ratified by Australia).

No statutory limitations shall apply to the following crimes … [c]rimes against humanity whether committed in time of war or time of peace … the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed (article I(b)). 

Procedural principles 
Recommendation 17:	That the following procedural principles be applied in the operations of the monetary compensation mechanism.
1.	Widest possible publicity.
2.	Free legal advice and representation for claimants.
3.	No limitation period.
4.	Independent decision-making which should include the participation of Indigenous decision-makers.
5.	Minimum formality. 
6.	Not bound by the rules of evidence.
7.	Cultural appropriateness (including language).

Assessment of compensation
In its submission the Commonwealth Government expressed concern that ‘[p]ayment of a single standard rate of compensation, without regard to individual circumstances would inequitably equate very different circumstances’ (page 31). The Inquiry’s recommendations will avoid inequity of this kind. Our approach finds support in submissions from the Broome and Derby Working Groups (submission 518) and the Tasmanian Aboriginal Centre (submission 325). 

Compensation should be paid in non-taxable lump sums to individuals  (Broome and Derby Working Groups submission 518 recommendation 3.1.2).

This approach has been adopted in somewhat analogous situations in other countries. For example, in 1989 the United States Government authorised lump sum reparatory payments to Americans of Japanese ancestry who had been interned during the Second World War. Research undertaken in Chile by the National Commission for Reparation and Reconciliation into the wishes of victims of violations of human rights by the military dictatorship revealed a clear preference for equal compensation for all regardless of their particular circumstances.
In the determination of compensation, some practical difficulties might arise in assessing what qualifies as proof of removal and proof of loss.  In many cases evidentiary material such as records may be difficult to obtain or have been destroyed.  In these cases, the burden of proof should be on governments to rebut otherwise credible claims. Governments should be able to defend a claim if they can establish that removal was in the best interests of the child. The reversal of the onus of proof to the extent proposed in Recommendation 18 is necessary as a ‘special measure’ under the Racial Discrimination Act 1975 (Cth). Special measures in favour of one ethnic group (or ‘race’) are permissible where needed to secure adequate development, advancement and protection so that they can enjoy, fully and equally, their human rights and fundamental freedoms.

The proposed monetary compensation mechanism is intended as an alternative to the cumbersome and often prolonged processes of civil claims. Accordingly, its processes should be straight-forward and non-technical and should ensure consistent results for claimants. The approach adopted finds support in the submission made to the Inquiry by the Tasmanian Aboriginal Centre.

We contend that such tribunals be empowered to make monetary awards to Aboriginal people affected by such separations. Empowering legislation could prescribe a minimum amount of damages to be awarded to each person on proof that they were displaced. Claimants wanting larger awards could be required to provide further particulars of their separation and the debilitating effect of such separation  (submission 325 page 14).

The Chilean Commission for Truth and Reconciliation also recommended payment of equal compensation to all without regard to their particular social, economic or cultural circumstances, although in Chile a pension scheme was recommended in preference to payment of a single lump sum  (Danieli 1992 page 206).

Minimum lump sum
Recommendation 18:	That an Indigenous person who was removed from his or her family during childhood by compulsion, duress or undue influence be entitled to a minimum lump sum payment from the National Compensation Fund in recognition of the fact of removal. That it be a defence to a claim for the responsible government to establish that the removal was in the best interests of the child.

Proof of particular harm
Recommendation 19:	That upon proof on the balance of probabilities any person suffering particular harm and/or loss resulting from forcible removal be entitled to monetary compensation from the National Compensation Fund assessed by reference to the general civil standards.
Everyone who can establish forcible removal and everyone who can establish harm or loss resulting from the forcible removal of any person should be entitled to claim monetary compensation regardless of the date of removal. The principal basis for the Inquiry’s recommendations on reparations is that forcible removal was a gross violation of human rights norms legally binding on Australia since late 1946. However, this is not the only basis for compensation. Many of the harms that can be established were the result of actions contrary to common law well before 1946.

In addition, the Inquiry’s recommendations do not rest on legal entitlements alone. A crucial justification for reparation, including monetary compensation, is a moral one.  It should be appreciated that the applicable human rights instruments did not invent rights but rather recognised and formally declared the existence of such rights as inherent in all human beings and as already existing. Further, invidious and unjust distinctions ought to be avoided. Thus it would be unfair to deny a remedy to a victim of forcible removal in 1945 while extending a remedy to a person forcibly removed in 1947 for example. Both were subject to the same legislation and procedures and would have endured much the same suffering.

A statutory regime of monetary compensation administered under administrative rather than judicial processes should not displace the entitlement of any person to pursue a civil claim through the courts as an alternative. Some people may wish to pursue civil claims to maximise the damages payable to them.

Civil claims
Recommendation 20:	That the proposed statutory monetary compensation mechanism not displace claimants’ common law rights to seek damages through the courts. A claimant successful in one forum should not be entitled to proceed in the other.

In the hard copy version of this report there is a reproduction of the following item:

“Maids of the Mission”, Forrest River, WA, undated.
Courtesy University of WA Berndt Museum of Anthropolgy.
Those who teach the Aborigines very soon discover that they are no whit behind any other race in mental capacity, and that they can master the lessons that white children learn quite as quickly and completely as they can. 
Rod Schenk, UAM missionary in WA in 1935, quoted by Harris 1990 on page 559.
What past? There ain’t none. There is more or less the past that they wanted me to have, not what I wanted, what I’d like to have.
Confidential evidence 146, Victoria: one of four siblings placed in a group home.