Editors --- "Bringing Them Home: Implementation Progress Report - Digest" [1999] AUIndigLawRpr 34; (1999) 4(3) Australian Indigenous Law Reporter 67
[1] (1997) 2 (2) AILR pp 286 ff.
[2] Some ‘head’ recommendations comprise a number of separate recommendations; see ‘Summary of Governments' Responses to Recommendations’ above.
[3] Ibid.
[4] The Report was updated in August in order, primarily, to incorporate the ACT Government’s Response delivered in late July.
[5] This view was endorsed by the first meeting of the representatives of governments convened by the National Indigenous Working Group, Brian Butler and Sir Ronald Wilson in Melbourne in December 1997.
[6] It is anticipated that the National Indigenous Working Group will assume this role in future.
[7] In this respect, the Follow Up Project team’s repeated efforts to obtain requested material from the Northern Territory Government were frustrated. The limited discussion of the Northern Territory Government’s initiatives in the Report duly reflects the paucity of material made available.
[8] In particular, it was considered by Indigenous representatives on the Steering Committee (see further below under ‘Involvement of Indigenous Communities’) that the dense bureaucratic form of the draft response was such as to make it unintelligible to those who would be most affected by its content. In an enlightened move, the New South Wales Government, in tandem with Link-Up New South Wales, conducted a series of public forums throughout the State during July and August 1998 at which Indigenous people and communities were able to voice their opinions as to how best the Government can respond to the Inquiry’s recommendations, with a view to producing a more ‘user-friendly’ response. It is anticipated by the Government that the response will be prepared by September 1998.
[9] Media Release from the Office of the Minister Responsible for Aboriginal Affairs, 19 November 1997, p 2.
[10] Media Statement, 20 May 1998.
[11] Pp 13-4. There is a small discrepancy between the figures quoted in the response and those in the statement – namely, the latter indicates that $11.3 has been allocated to the LinkUp network and $39.2 million to DHFS, which represents an additional $50,000 for each allocation from the amounts originally declared in the response.
[12] The following page references are from Senator Herron’s Statement: for the language, culture and history centres ($9 million), see pp 41-3; for the LinkUps network ($11.3 million), see pp 44-7; for the Australian Archives records project ($2 million), see p 74; for the National Library Oral History programme ($1.6 million), see p 80; and for the DHFS programmes ($39.3 million), see p 107.
[13] For the composition of the Committee, see the Government’s Statement of Progress in Commemoration of National Sorry Day, 26 May 1998.
[14] Discussed further under Section 7(viii) below.
[15] See Response, p 17.
[16] Discussed further under Section 7(viii) below.
[17] Correspondence from Mr Greg Hunting, Chief of Staff , 3 March 1998; on file.
[18] As endorsed by Council of Australian Governments (COAG) in May 1992, and subsequently reaffirmed by the MCATSIA in it’s July 1996 meeting. Furthermore, the Prime Minister advertised the reinvigoration of the National Commitment in his speech opening the Reconciliation Conference, 26 May 1997, Melbourne.
[19] Ibid, para.4.3.
[20] That is through ATSIC. As regards the process of formulating the government’s response, ATSIC staff attended the single Interdepartmental Committee meeting convened on 22 July 1977 to discuss the response. ATSIC staff were also involved in a number of bilateral discussions with staff of the Department of Prime Minister and Cabinet. The ATSIC Board, however, was never formally or directly consulted, though according to Senator Herron, ‘the matter was raised at a number of ATSIC Board meetings when I was present’: response to a question put to Senator Herron by Senator Bob Collins, Senate Debates, 4 March 1998, pp 435-6.
[21] The Aboriginal and Torres Strait Islander Consultative Council. The Council provides advice to the Chief Minister ‘on issues affecting the interests and well-being of Canberra’s Indigenous population and to act as a link between government agencies and Indigenous peoples’; ACT Response, p 17. The Council has an ad hoc membership and it meets approximately every six weeks.
[22] The Indigenous Advisory Council (IAC). The IAC is a standing body with 10 staff and chaired by Neville Bonner. It provides advice to government on the full range of Indigenous issues. See further, Queensland Government Response, p 3.
[23] The Steering Committee convened by the New South Wales government to oversee its response to the National Inquiry’s recommendations included two representatives from the New South Wales Stolen Generation Working Group. It is noted that the New South Wales Government has considered the detailed recommendations made by Link-Up New South Wales to the National Inquiry as integral to the preparation of its response. The Link-Up submission and recommendations have been published separately under the title In the Best Interests of the Child?, 1997.
[24] It is noted in the Victorian government’s response that the Department of Human Services, through Aboriginal Affairs Victoria, ‘will make available $50,000 to employ a Koori to debrief Koori communities on the National Inquiry and particularly those who gave witness testimony. They will also be required to provide feedback to the Government on the implementation of the State Government initiatives’: p 10.
[25] New South Wales Government’s Statement of Progress, 26 May 1998.
[26] Op cit, para 2.
[27] Op cit, Overview, p 1.
[28] Ibid.
[29] Ibid.
[30] The Recommendations stipulate eight specific standards spread across Recs 46 to 53. For further discussion, see Section 7(vii) below.
[31] Both the Queensland and Victorian Governments expressly reject the notion of national framework or national standards legislation; see their Responses, p 14 and p 42, respectively. The Governments of Tasmania (Response, p 34) and New South Wales on the other hand, are more amenable to the idea and would support inter-governmental discussion of the issue. The ACT Government has indicated that it ‘would be prepared to consider national standards in relation to child protection and placement and for young offenders’, Response, p 3.
[32] At p 10.
[33] See discussion below.
[34] November 1997.
[35] ‘Improving Human Services for Victorian Koories: A Five Year Plan’, March 1998. The Strategy expressly echoes the sentiments of the National Commitment upon which it is based.
[36] At p 8.
[37] At p 3.
[38] At p 5.
[39] Op cit, Introduction, para 1.1.
[40] Ibid, para 4.4.
[41] South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and, Victoria: 17 September 1997.
[42] Parliamentary Record (NT), 17 February 1998, p 17.
[43] Somewhat puzzlingly, the Prime Minister, effectively extended this qualification still further – to a point where the circle would appear to be squared – when he emphatically professed that he ‘[p]ersonally, ... feel[s] deep sorrow for those of my fellow Australians who suffered injustices under the practices of past generations towards Indigenous people. Equally, I am sorry for the hurt and trauma many people here today may continue to feel as a consequence of those practices’; Prime Minister’s Opening Speech, Australian Reconciliation Conference, Melbourne, 26 May 1997. The apparent inconsistency in reasoning lies in fact that for Mr Howard to make such an apology he would, according to his own view, have to be acknowledging some direct, personal responsibility, which we appreciate was not the case.
[44] Mr Stirling, Parliamentary Record (NT), 17 February 1998, p 59. The ACT Government’s position is different in this respect. For while it invokes the ‘not directly responsible’ argument in its rejection of the Inquiry’s recommendation that financial compensation for those affected be considered (Response, p 27), the Government, together with the Legislative Assembly, did issue a statement of apology.
[45] In fact, the Commissioner made clear in the statement that the apology was made on behalf not only of the police service, but also the CEOs of all New South Wales justice agencies.
[46] Response, p 4.
[47] Senator Herron, Budget Day Statement, 1998, op cit, p 80.
[48] Ibid.
[49] In the words of the Commonwealth Government’s Response the ‘ATSIC Board has agreed to commit an additional $9 million over the next three years for language and culture centres ...’: p 10.
[50] Ibid, pp 41-3.
[51] News Release from the office of the Minister Responsible for Aboriginal Affairs, Victoria, 17 November 1997, p 2; see also p 16 of the Victorian Government’s response.
[52] Statement of Progress, op cit, p 2.
[53] Statement made by the Premier, Mr Bob Carr, at a Sorry Day Service, Government House, Sydney, 26 May 1998;
reported: Sydney Morning Herald, 27 May 1998, p 1.
[54] Response, pp 14-5.
[55] Response, p 10.
[56] Response, p 4.
[57] Response p 27.
[58] Williams v Minister, Aboriginal Land Rights Act and the State of NSW (1994) 35 NSWLR 497. The substantive matter of the case is yet to be argued.
[59] PIAC filed and served a claim for compensation of the plaintiff in the Supreme Court of New South Wales on 19 February 1998.
[60] In respect of the Stevens case, PIAC’s statement of claim is almost identical to that of the SGLU’s in the two Northern Territory Federal Court cases detailed above.
[61] PIAC, Providing Reparations: A Brief Options Paper, October 1997, p 9.
[62] In reading this Section, the reader might also refer to the table compiled in the Bringing Them Home Report (pp 330-1) which outlines the records searching and tracing services available in each jurisdiction. This section takes that table as its base, and the following observations and comments are provided either to draw out a particular important feature or point, or where the situation now significantly differs from that recorded by the Inquiry.
[63] MOU, p 2. ‘Open period records’ are records more than 30 years old. ‘Closed period records’ less than 30 years old are not generally accessible and are therefore not covered by the MOU. It should be noted, however, that the Australian Law Reform Commission has recommended in its Report, Australia’s Federal Record: A Review of the Archives Act 1983, that MOUs ought to be developed between government departments and Indigenous peoples in respect of records less than 30 years old; ALRC Report No.85, 1998, Rec 213, p 361.
[64] Victoria is special in this regard, as it alone among the states transferred to the Commonwealth in 1975 all records it held relating to the administration of Aboriginal Affairs.
[65] Commonwealth Response, at p 6; see also Senator Herron’s 1998 Budget Day Statement, p 74.
[66] Response, p 36.
[67] This Project, which was on foot before the Inquiry’s Recommendations were made, covers the tracing of family and communities’ records held by government and non-government bodies relating to Aboriginal and non-Aboriginal people. The resultant Connecting Kin – Guide to Records is expected to provide a guide to one-stop records access; it is understood that the guide will be launched in late September 1998.
[68] Response, p 5.
[69] Response, p 36.
[70] The Northern Territory Government has no plans to enact FOI legislation as called for in Rec 26.
[71] Response, pp 8, 37.
[72] Response, pp 36-7.
[73] There are no plans to enact archives legislation in the Northern Territory.
[74] Though the Government has declared that it intends to examine the need for such legislation; Response, p 34.
[75] A Joint Guide to Records about Aboriginal People in the Public Records Office of Victoria and the Australian Archives, 1993.
[76] Response, p 2.
[77] Response, p 39. However, it is relevant to note that according to the ACT Government itself, the Australian Institute of Aboriginal and Torres Strait Islander Studies (situated in Canberra) is usually the first port of call for Indigenous people seeking personal and family information; Project Team meeting with Government.
[78] Protocol, pp 5-6.
[79] Note, there is also provision for the training of archives staff under the MOU: p 5.
[80] Media Statement 20 May 1998, p 1.
[81] Ibid.
[82] It must be noted, however, that the service relates only to those records held by the Department (whether in its offices or in State Archives). The Section can and does direct users to other departments (such as Births, Deaths and Marriages) or non-governmental bodies (such as churches) where it does not hold the records sought. In respect of the latter records, many are either held by the John Oxley Library, or the Library has access to them. Volume 3 of the Guide referred to in the following footnote focuses on these other sources of records.
[83] Only the first of three volumes of the Guide is currently available. This first volume (along with Volume 2) will describe the historical records held by the Department. Volume 3 will describe the records held by other government departments (for example, Police, Lands, and Auditor-General). The price quoted refers to the first volume. The Guide is a joint initiative of the Department and Queensland State Archives.
[84] Response, p 26.
[85] Response, p 19.
[86] Statement of Commitment, op cit, p 8.
[87] Northern Territory Government Protocol, p 13.
[88] MOU, p 6.
[89] Response, p 19.
[90] ACT Government Response, p 34.
[91] Response, p 27: where it is noted that under s 74(1) of the Adoption Act 1988 (Tas), counselling is mandatory for all adopted persons or birth parents seeking information; this applies, of course, to Indigenous and non-Indigenous people alike.
[92] Senator Herron’s Budget Day Statement, 12 May 1998, pp 47.
[93] Response, p 7.
[94] Ibid.
[95] See Senator Herron’s Budget Day Statement, 12 May 1998, pp 46-7. The Commonwealth points out that this extra funding represents a 300% increase in the ATSIC’s annual budget for this purpose.
[96] Correspondence from the Commonwealth Minister for Health and Family Services, Dr Michael Wooldridge (to Sir Ronald Wilson), 12 May 1998; on file.
[97] Statement of Commitment, p 8.
[98] Addendum to the Queensland Government’s response. Crucially, not indications are provided as to how long the employee will be engaged on developing the project and when it might be finished; how the resultant training program might be administered and by whom (the Department or Link-Up?), and no costs estimate or budget is provided.
[99] Response, p 28. In a similar vein, the ACT Government’s response talks, in this respect, of ‘applying’ for an additional mental health counsellor for the ACT from the 50 new Commonwealth positions to be created: at p 4.
[100] The last of which was concluded (with the Northern Territory) in April 1998. The process of securing all 8 agreements took approximately 2 years. Typically, each agreement is between the State/Territory Minister for Health, the Commonwealth Minister for Health, Chairperson of ATSIC and the Chairperson of the peak Indigenous community health care body.
[101] Wellbeing Action Plan, see infra n 101: p 1.
[102] Which was launched in October 1996 by the Commonwealth Minister for Health, Dr Michael Wooldridge. The Wellbeing Action Plan has a budget of $20 million spread over four years. The Wellbeing Action Plan is itself a direct product of the Ways Forward Report 1995 (Vols 1 & 2) on Aboriginal and Torres Strait Islander Mental Health, prepared by Raphael, B and Swan, P.
[103] Commonwealth Response, p 8.
[104] Commonwealth Response, p 2.
[105] Minister for Health and Family Services, Media Release, 12 May 1998, p 6.
[106] See further, Senator Herron’s Budget Statement, 12 May 1998, p 107.
[107] Commonwealth Response, p 4.
[108] Ibid.
[109] Commonwealth Response, p 8.
[110] Dr Wooldridge; correspondence (with Sir Ronald Wilson), 12 May 1998; on file. It is understood that the item is on the agenda for the next meeting of the Advisory Council in September 1998.
[111] Ibid.
[112] The ACT Government, in its Response, does however attempt to make this distinction, at pp 5-9.
[113] At pp 294-5.
[114] Commonwealth Response, ‘Summary’ table, p 12.
[115] Media Statement.
[116] The provision of the material indicated has been foreshadowed in the ACT Government Response – p 30; it has already occurred in the other jurisdictions cited.
[117] Response, p 4.
[118] Typically, such policies address the twin questions of how ‘[t]o promote educational achievements of Aboriginal students’ and, ‘[t]o educate all students about Aboriginal Australia’; these are the word of the New South Wales Department of School Education’s Aboriginal Education Policy.
[119] See Response, p 19.
[120] See Response, p 13.
[121] See Response, p 4.
[122] Response, p 15: ‘Aboriginal Studies’ is a compulsory unit of the learning area ‘Studies of Society and the Environment’ in Tasmania.
[123] Response, p 14.
[124] Response, p 15.
[125] Response, p 5.
[126] Response, p 30.
[127] ACT Government Response, p 30.
[128] See, for example, the Responses of the Queensland and Victorian Governments: p 5 and p 14, respectively.
[129] See, for example, the Tasmanian Government Response, p 3.
[130] Commonwealth Response, p 10.
[131] As is the case in the ACT and Queensland.
[132] As in Victoria where there are 15 such groups. They are consulted in respect of the development and implementation of relevant health, education, welfare and other policies under terms of the Department of Family Services Koori Improvement Services Strategy (March 1998), pp 11-14.
[133] For example, the recently announced $200 million Aboriginal Community Development Program in respect of targeted areas in rural New South Wales; media release, Deputy Premier and Minister for Aboriginal Affairs, Dr Refshauge, 30 May 1998.
[134] At pp 13-14.
[135] At pp 34-5.
[136] At p 42, citing its Koori Services Improvement Strategy (discussed above in Section 6) ‘as a vehicle for strengthening the self-management and self-determination of Koori communities’.
[137] Which is a company limited by guarantee under the Corporations Law. The Department provided the Foundation with $1 million in seed money (which has since been supplemented by $750,000 provided by BHP), under its Wellbeing Action Plan, discussed above.
[138] Kruger v Commonwealth [1997] HCA 27; (1997) 71 ALJR 991.
[139] Summary table appended to Response.
[140] For details, see Bringing Them Home, pp 439-48; except for Tasmania which has now incorporated the ACPP in the Children, Young Persons and their Families Act 1997, s 9. The draft response of the New South Wales Government foreshadows a desire to extend the current scope of the ACPP to cover all placements of Indigenous children and not just those following a court order, and to articulate more clearly the circumstances in which discretion is exercised not to apply the ACPP.
[141] Ibid. The ACT Government indicates in its Response that it ‘proposes that the principle be enshrined verbatim in the [Children Services] Act’: p 8. A review of the operation of the ACPP in New South Wales which includes comparative analyses of the operation of the principle in all Australian jurisdictions and overseas was conducted recently by the New South Wales Law Reform Commission, The Aboriginal Child Placement Principle, Research Paper No 7 (March 1997).
[142] See Responses of the Governments of Tasmania (p 39) (now bolstered by the enactment of the Youth Justice Act 1997); Victoria (pp 49-50), Queensland (p 14) and the ACT (p 8); and the draft response of the New South Wales Government. See further, Ch 24 of Bringing Them Home, and the individual submissions of the governments to the National Inquiry. For a recent analysis of the status of Indigenous criminal justice, including juvenile justice, across Australia in the context of an evaluation of the implementation of the RCADIC recommendations, see C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People out of Custody, 1997.
[143] Correspondence, 31 July 1998; on file. The Ministry of Justice added, ‘[i]t needs to be noted that some of these young offenders have been sentenced to community based sanctions and some juveniles have been sentenced on more than one occasion.’: ibid.
[144] See, for example, Victorian Government Response, p 47. For an overview, of the status of representation provisions in all Australian jurisdictions in respect of civil, family and care and protection matters, see Australian Law Reform Commission and HREOC, Seen and Heard: Priority for Children in the Legal Process, ALRC Report No 84, 1997, Ch 13.
[145] Response, p 46.
[146] At p 14.
[147] Response, p 6.
[148] See discussion in Social Justice Commissioner’s Report on RCADIC, 1996, p viii and pp 257-68.
[149] See Commonwealth Government Response, p 10, and as discussed further, above in Section 6.
[150] Correspondence from Office of the Minister for Aboriginal and Torres Strait Islander Affairs, 3 March 1998; on file.
[151] Correspondence from the Commonwealth Minister for Health and Family Services, Dr Wooldridge to Sir Ronald Wilson, 12 May 1998; on file.
[152] Victorian Government Response, p 5.
[153] ‘Overview’ of the Premier, Mr Tony Rundle MHA, p 4.
[154] Response, p 3.