Graycar, Regina --- "Compensation for the Stolen Children: Political Judgements and Community Values" [1998] UNSWLawJl 22; (1998) 21(1) UNSW Law Journal 253
Compensation For The Stolen Children:
Political Judgments And Community Value
REGINA GRAYCAR[*]
Speaking at the launch of the New South Wales
Premier’s Literary Awards on 17 September 1997, author Drusilla Modjeska
described
the Human Rights and Equal Opportunity Commission (HREOC) report,
Bringing them Home,[1] as the
most important - if not the best - book that had been published “this cold
and chilly winter”.[2] Several
months have passed since its release and the Commonwealth Government has not yet
made a response of any substance, other
than to dismiss the suggestion that
compensation should be payable to those whose lives were destroyed or fragmented
by the practice
of taking Aboriginal children away from their families in the
name of ‘assimilation’. Condoned by governments of the
time, this
practice has been described by HREOC as constituting genocide.
A number of
the recommendations of the National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from their
Families[3]
focused on means of compensating for the harms done to those taken
from their families.[4] Commonwealth
Government responses have almost categorically rejected the payment of any
compensation, and no apology has been forthcoming.
In its submission to the
Inquiry, the Commonwealth Government raised as a concern the difficulty in
estimating the monetary value
of losses, on the grounds that “[t]here is
no comparable area of awards of compensation and no basis for arguing a quantum
of damages from first
principles”,[5] an argument
echoed in an editorial in The
Australian.[6]
In this comment,
I want to address the argument that compensation is pointless either because
there is no comparable area of compensation,
or because “no amount of
money can make up for the pain of the
past”,[7] by drawing analogies
between the wrongs perpetrated on the Stolen Children, and those that come
before the courts on a daily basis
for assessment. Even the most minimal
familiarity with the legal frameworks used for compensating various sorts of
injuries would
make it clear that the Government’s argument is little more
than a rhetorical device. What is, or is not, compensable at law
is more a
matter of political judgment and government policy than it is a matter of any
inherent legal understanding of compensability.
Perhaps the most common form
of compensation that courts deal with is the assessment of damages for personal
injuries caused by negligence,
such as in the negligent driving of a motor
vehicle. Many tort scholars have pointed out that this process is little more
than,
as Ison called it, a “forensic
lottery”.[8] Judges (and
occasionally juries) are called upon to make assessments of both economic and
non-economic losses, at common law, on
a lump sum ‘once and for all’
basis. This, of necessity, involves speculation about a range of imponderables,
the difficulty
of which is occasionally acknowledged by those upon whom that
task falls. For example, in one recent New South Wales case involving
a young
boy injured in an accident, the judge commented:
These disputes must of course be determined on a once and for all basis.
Looking to the past is one thing; this causes no great
difficulties. Looking to
the future is an entirely different proposition ... [T]he Court is required to
make a judgment about his
future job prospects and earning capacity. The task
needs only to be stated for it to be realised that this is not simply entering
into an area of speculation, it is one of judicial guess-work.
Each of these exercises - the determination of the loss of earning capacity
and awarding a monetary sum to look after his future care
- requires the Court
to assess the unassessable, to pronounce on the unpronounceable, to judge the
unjudgeable. But that is what
I am required by law to do, and what, to the best
of my abilities, I will
do.
[9]
Of
particular relevance in this context is the assessment of non-economic losses:
damages for pain and suffering, damages for loss
of the amenities of life, and
damages for loss of expectation of life. There is no pretence that economic or
actuarial processes
are involved: instead, there is said to be a
‘tariff’ that guides these
assessments.[10]
Interestingly,
Australian courts have sometimes been called upon, as part of their
consideration of a claim for loss of amenities,
to assess the loss to an
indigenous accident victim of their ability to participate fully in cultural
life. In Napaluma v
Baker,[11] Zelling J found that
as a result of the plaintiff sustaining a head injury in an accident, his
ability to participate in the cultural
life of the community had been impaired:
though he had been “through the ceremonies of the Aboriginal community up
to date”,[12] he would not be
able to go further in that respect. Justice Zelling commented:
It is extremely difficult to put a monetary value on this special loss of
amenity of position within the tribe ... Doing the best
I can on this head and
conscious that I look at the problem with European eyes and not with the eyes of
those in the community, I
allow $10,000 for loss of amenities on this head
alone.[13]
In
the same year, O’Leary J in the Supreme Court of the Northern Territory
was faced with assessing damages for a young indigenous
man, injured in a road
accident at the age of five. Unlike the plaintiff in Napaluma, the
plaintiff in Dixon v
Davies[14] had not yet gone
through any stage of initiation and the evidence was that even if he was able to
take part in the early parts of
that process, he was likely to remain
‘wiyai’ or ‘young boy’ as a result of his injuries, and
therefore be
denied access, inter alia, to tribal secrets. Given his age,
O’Leary J held that this loss was more severe than that in Napaluma v
Baker and awarded him $20,000 for this aspect of his loss.
Most recently,
in Namala v Northern Territory of
Australia,[15] an indigenous
woman had suffered injuries as a result of medical negligence in the course of
having her first child. The woman’s
husband had left her after she told
him, upon returning from the hospital with her son, that because of these
injuries she was unable
to bear any more children. The court noted:
[The plaintiff] gave evidence as to the importance of children in
Aboriginal families in that vicinity ... [She] also testified that
it was
important for Aboriginal women in that community to have daughters, so that they
are able to fully participate in ceremonial
women’s
business.
[16]
An anthropologist
who gave evidence also described the importance of children in that community,
both as an aspect of personal protection
and because - as there was such a
paucity of employment opportunities - “women’s economic empowerment
is only through
the receipt of child endowment
funds”.[17] By the time of
trial, the plaintiff had remarried, but the anthropologist also stated that her
relationship with her new husband
could be in jeopardy. The trial judge awarded
her a total of $15 000 for past and future loss of cultural fulfilment.
There
are a number of other contexts in which damages are awarded, either under
statutory compensation
schemes,[18]
or through other common law recognitions of loss. Dissatisfaction
with ascribing a monetary amount to an intangible loss, such as
the loss of
reputation in the law of defamation, has been somewhat more muted than it has in
the area of personal injury.[19]
Nevertheless, these damages do occasionally prompt comment and comparison with
the compensation available for various other injuries.
In 1991, well known
New South Wales footballer Andrew Ettingshausen instigated defamation
proceedings against Australian Consolidated
Press after one of the
company’s magazines published a photograph of him in which an outline of
his (unclad) penis was visible.[20]
In 1993, a jury awarded him $350 000. On appeal, this amount was reduced to
$100 000.[21] The amount of $100
000 is greater than the maximum amount available to victims of sexual assault,
for example, under most states’
criminal injuries compensation
legislation. And in some states, most notably Victoria, legislative amendments
have removed recovery
for all non-economic losses in cases of victims’
compensation.[22]
One singular
Australian statutory scheme for compensation is that which deals with claims by
war veterans for injuries or illness
caused by war
service.[23] From 1977 to 1985, the
onus was explicitly on the respondent, (that is, the government), to
prove, beyond reasonable doubt (the criminal, not civil, standard of
proof) that an injury was not caused by war in order for a veteran to be
refused compensation.[24] Clearly,
this unique burden and standard of proof for a compensation statute existed
because a political decision was made that
war veterans are
‘deserving’ of compensation. It is not my purpose to criticise that
political choice, but rather to
suggest that statutory frameworks that govern
what is, and what is not, compensable and who is, and who is not, deserving of
compensation
are just that: political choices - choices that supposedly reflect
assumed community values.
At the same time as the Commonwealth Government
has steadfastly maintained that to apologise to the Stolen Children would be an
admission
of liability and therefore lead to an obligation to pay compensation,
there has been a world wide phenomenon of governments recognising
that wrongs
had been perpetrated and apologising for the sins of their predecessors. Almost
contemporaneous with the release of
the HREOC Report came the apology from
United States President, Bill Clinton, to those who had been subjected to
medical experimentation
in Tuskegee in the earlier part of this
century.[25] More recently, stories
have emerged from Sweden and France about the widespread practice of eugenic
sterilisations of women not
considered to be suitable for
motherhood.[26] Muir v
Alberta, a case arising out of those eugenic practices, was decided last
year by the Alberta Court of Queen’s Bench in
Canada.[27]
Leilani Muir was
admitted to the province’s training school for ‘mental
defectives’ in 1955 and remained there for
10 years. The Government
failed to follow its own legislation and procedures and, after only the most
cursory medical tests, labelled
her a ‘mentally defective moron’ and
had her surgically sterilised. This procedure was approved by the provincial
eugenics
board, operating pursuant to the Sexual Sterilisation Act RSA
1955, c 311. It later emerged that her problems were emotional rather than
mental and she had not had access to the services
of psychologists and social
workers who might have assisted her.
The court held that both the
sterilisation and the detention were unlawful and she was awarded damages of
over $625 000, which included
aggravated damages in relation to the
sterilisation. Ms Muir had also claimed punitive damages, but the court
held: