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Buti, Tony --- "Removal Of Indigenous Children From Their Families: - The National Inquiry And What Came Before" [1998] AUIndigLawRpr 7; (1998) 3(1) Australian Indigenous Law Reporter 1


Removal Of Indigenous Children From Their Families:

The National Inquiry And What Came Before --

The Push For Reparation

Tony Buti*

Introduction

The public and political debate concerning the removal of Indigenous children from their families has intensified since the tabling [1] of the Human Rights and Equal Opportunity Commission (HREOC) report, Bringing them Home [2] (Wilson Report). The Wilson Report is the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (National Inquiry) conducted by HREOC. [3]

Neither the release of the Wilson Report nor the commencement in 1995 of the National Inquiry [4] should be considered as the starting point in the discussion of and push for reparation [5] for Indigenous people who were removed from their families under government policies. Indigenous individuals and organisations have been active since at least the mid-to-late 1980s in advocating for a national inquiry into removal policies and practices. [6] Some examples of activism follows.

Former Prime Minister of Australia, Paul Keating, drew attention to the removal issue on 10 December, 1992 in a speech at Redfern Park, Sydney where he stated "we took the children from their mothers". The Prime Minister said that white Australia had failed to make the most basic human response and enter into the hearts and minds of the Aboriginal people.

Two years later, in 1994, an Indigenous female in New South Wales, Joy Williams, commenced legal action in the Supreme Court of New South Wales. [7] The matter went on appeal from an interlocutory hearing, which referred the matter back to trial. [8] At the time of writing the matter has not proceeded to trial.

In the same year The Going Home Conference was held in Darwin, bringing together Aboriginal people, mainly from the Northern Territory, who had been removed from their families. Ron Merkel, then QC, addressed the conference. His paper, titled A Paper on Legal Options for Aborigines `Taken' from their Families and their People [9] and The Going Home Conference led to the establishment of a `Stolen Generations Litigation Unit' within the Northern Australian Aboriginal Legal Service. This resulted in the High Court cases of Kruger v Commonwealth [10] (Kruger) and Bray v Commonwealth [11] (Bray), argued before the Full Court of the High Court in Canberra in mid-February, 1996, [12] with the decision handed down on 31 July, 1997. [13]

In association with the push for a national inquiry into removal procedures and policies, the Aboriginal Legal Service of Western Australia (Inc) (ALSWA) commenced a project to interview approximately 80 people who had been removed from their families. The ALSWA interviewed over 600 people before it launched its first report in June 1995, entitled Telling Our Story. [14] By the time the ALSWA completed its second report in May, 1996 it had collected over 700 stories. [15] The report titled After the Removal [16] was submitted to the National Inquiry. [17]

In September 1996, the Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Service hosted a national workshop in Alice Springs, which was attended by over 250 delegates from across the nation. [18] A number of issues were discussed and recommendations made, including the establishment of a `Stolen Generations National Secretariat' serving several functions, one being the monitoring of recommendations emanating from the National Inquiry. [19]

As indicated above, communal activism has long been geared towards a national inquiry into the removal of Indigenous children from their families. The push for acknowledgment and reparation is not over. The debate continues on how the Commonwealth and other governments should respond to the Wilson Report. Before examining the Wilson Report it may be useful to reflect on some of the important benchmarks that have preceded the tabling in parliament of the report. First, the cases of Williams, and then Kruger and Bray [20] will be reviewed. Secondly, an overview of Telling Our Story and After the Removal 21 will be presented. Thirdly, the proceedings of the national workshop in Alice Springs will be briefly discussed. Then the Wilson Report will be analysed, focusing primarily on its genocide assertions and reparation claims.22

Williams Case

The Facts

The Indigenous female plaintiff, who at the age of five was removed from a home for Indigenous children to one for white children, commenced proceedings in the Supreme Court of New South Wales in January 1993 against the Minister and the State. The plaintiff, diagnosed as having suffered from `borderline personality disorder which ... appears to be due to a fundamental failure in parenting', sought damages for negligence, wrongful imprisonment and equitable compensation for a breach of fiduciary duty. She sought an extension of time under s. 60G(2) of the Limitations Act 1968 (NSW) in order to bring her claim. [23]

The Decision

The Court of Appeal granted the extension of time sought by Ms Williams by a 2:1 majority. Kirby P and Priestly JA were in the majority with Powell JA in dissent. Kirby P wrote the leading judgment. The court reconsidered three main issues: the fiduciary claim; the question of prejudice; and the question of justice.

(a) The Fiduciary Claim

Kirby P recognised that the action was not only based in the torts of negligence and wrongful imprisonment. It included the alleged breach by the Board (for whom the respondents were allegedly liable) of the fiduciary duty said to be owed to Ms Williams as a child under the protection of the Board. [24]

Kirby P held that Studdert J had erred in law in finding that the claim for breach of fiduciary duty fell within the time limit imposed by the Limitation Act 1969 (NSW) (Limitation Act). Kirby P stated that the structures of the Limitation Act make it clear that the ancient principles of Equity have been preserved. [25] Therefore, the Limitation Act, at most, could only apply to the claim for equitable compensation for breach of fiduciary duty by analogy. Kirby found Ms Williams was entitled to be heard and set aside the orders made by Studdert J.

The Question of Prejudice

Kirby J in considering the question of prejudice acknowledged that any long delay in proceedings would disadvantage the defendants. The defendants' `opportunity to test, verify and counter' the plaintiff's claims would be diminished with the death of witnesses, fading memories and destroyed documents. [26]

However, in the end, Kirby P held:

It is necessary, in each case, to judge the prejudice and to weigh it against the prejudice to the plaintiff of refusing the extension sought. In this case, as in MK v MH, [27] it is important to keep in mind that Ms Williams was an infant at the time the alleged wrongs occurred. The time bar did not descend against her in 1953, six years after her placement in Lutanda. It was postponed until she reached her majority. [28]

(c) The Question of Justice

Kirby P held that `[t]he passage of time, and changing perceptions of right and wrong conduct present as great a problem for Ms Williams as they do for the respondents.' [29] His Honour remarked:

It is not just and reasonable in this case to close the doors of the Court in Ms William's face. She should have her chance to prove her case. She might succeed. She might fail. But her cause will have been heard in full. It will then have been determined as our system of law provided to all Australians - Aboriginal and non-Aboriginal - according to law, in open court and on its merits. [30]

Kruger and Bray cases

Introduction

The Kruger and Bray, cases involved a claim for declaratory relief and charges against the Commonwealth of Australia. The cases challenged the constitutional validity of the Aboriginal Ordinance 1918 (NT) (`the Ordinance') which provided the legal basis for the removal of Indigenous children from families and communities in the Northern Territory [31] . The Ordinance was enacted pursuant to Commonwealth legislation providing for the government of the Northern Territory. [32]

The Decision

Section 122: The Power to Make Laws for the Government of a Territory

Chief Justice Brennan and Toohey, Gaudron, Dawson and McHugh JJ all agreed that the Ordinance is a "law for the government of a territory" for the purposes of the Commonwealth legislative power under s. 122 of the Constitution, and that the plaintiffs argued the wrong test in this regard (the nexus test being the relevant test, as opposed to the proportionality test asserted). [33] Justice Gaudron stated that although s. 122 has a purposive element, that purposive element was not an issue in the case. [34] Accordingly, the test of proportionality of the legislation had no application. Thus, the relevant test in the case was whether the legislation had sufficient nexus with the Territory. As the law operated only on people, places and events in the Northern Territory the nexus was satisfied.

Separation of Powers -- Judicial Power Only Able to be Conferred on Chapter III Courts

Justices Dawson, McHugh, Toohey, Gaudron and Gummow all agreed that the power to detain Indigenous children in custody (for the purpose of their welfare) cannot be construed as an exclusively judicial power, and as such, the Chapter III requirements of the Constitution need not be complied with. [35] Justice Dawson (with whom McHugh J agreed) and Gummow J also concluded that Chapter III does not restrict the scope of s. 122 in any case. [36]

Implied Guarantee of Due Process of Law

Justices Dawson and McHugh agreed that the Constitution does not contain a general guarantee of due process of law. Justice Dawson (with whom McHugh J agreed) stated that, unlike the United States Constitution, the Commonwealth Constitution does not seek to establish personal liberty and does not contain a guarantee of individual rights. Thus, the Constitution contains no general guarantee of due process of law. [37] Justice Gaudron stated that as the power to detain in custody is not necessarily a judicial power, the power was not subject to a requirement of due process. [38]

Implied Guarantee of Equality

Chief Justice Brennan and Dawson, McHugh, Gaudron and Gummow JJ rejected the notion of an implied guarantee of substantive legal equality in the Constitution. [39] Justice Toohey, relying on his earlier joint decision with Deane J in Leeth v Commonwealth, [40] dissented on this view. Justice Toohey stated that there is an implied principle of equality of treatment in the Constitution. [41] However, Toohey J held that it was not possible at this stage of the proceedings to determine whether the Ordinance contravened that principle. [42]

Implied Freedom of Movement and Association

Justices Toohey and Gaudron recognised the existence of an implied freedom of movement and association in the Constitution, which also confined the operation of s. 122. [43] Justice Toohey commented that the question of whether the Ordinance contravened the implied freedoms is a question of whether the provisions were disproportionate to what was reasonably necessary for the protection of the people to whom the Ordinance applied. However, Toohey J held that at this stage of the proceedings, it was not possible to answer the question. [44] Likewise, Gaudron J refrained from answering the question because it was first necessary to determine the veracity of the Commonwealth's plea that the Ordinance was enacted "for the purpose of the protection and preservation of persons of the Aboriginal race". [45] This plea was the subject of reserved question 3, which did not need to be answered. [46] Justice McHugh recognised the existence of an implied freedom of movement and association in the Constitution, which were necessary to guarantee the implied right of political communication in the Constitution. [47] However, McHugh J held that Northern Territory residents did not receive constitutional and democratic recognition until 1977, [48] way after the life of the Ordinance. [49]

Justices Dawson and Gummow rejected the notion of an implied freedom of movement and association. [50] Whilst Brennan CJ did not need to decide the issue, His Honour concluded that it would have no effect either way. [51] Chief Justice Brennan held that the impugned provisions were not directed to impeding protected communications. Accordingly, even if there was an implied constitutional right to freedom of movement and association, such a constitutional requirement would not have invalidated the impugned provisions. [52]

Genocide53

All six judges agreed that the Ordinance did not authorise genocide. [54] Chief Justice Brennan held that none of the impugned provisions could be taken to have authorised acts done for the purpose or with the intention of causing harm. It was therefore unnecessary to consider whether the Ordinance was inconsistent with an implied constitutional freedom or immunity from any law or executive act having the effect of the destruction of a racial or ethnic group. [55]

Justice Dawson (with whom McHugh J agreed) stated that there was nothing in the ordinance which conferred authority to commit acts of genocide. [56] Justice Dawson also stated that, consistent with the doctrine of parliamentary supremacy, there was no constitutional restriction on s. 122 of the Constitution not to authorise acts of genocide. [57]

Justice Toohey held that there was nothing in the Ordinance, according to the ordinary principles of construction, which would justify a conclusion that it authorised acts `with intent to destroy, in whole or in part the plaintiffs' racial group.' [58] He added, "... it is necessary to keep in mind that it is however the validity of the Ordinance, not any exercise of power under the Ordinance, which is the subject of these proceedings." [59]

Justice Gaudron held that under the settled principles of statutory construction, the Ordinance did not authorise acts of genocide. [60] However, in contrast to Dawson J, Gaudron J was of the opinion that s. 122 of the Constitution was restricted by prohibition against "laws authorising acts of genocide as defined in Act II of the Genocide Convention ...". [61]

Justice Gummow held the actions authorised by the Ordinance did not amount to genocide as defined by the Genocide Convention. [62] Justice Gummow agreed with Dawson J, that reliance by the plaintiffs on customary international law as it related to genocide was "misplaced". [63]

Freedom of Religion

Chief Justice Brennan held that s. 122 of the Constitution was restricted by s. 116 (freedom to exercise any religion) but "none of the impugned laws on its proper construction can be seen as laws for prohibiting the free exercise of a religion ...". [64] Justice Toohey left open the question of whether s. 116 restricted s. 122, but in any case could not find an intention to restrict the free exercise of religion in the Ordinance. [65] Justice Gummow held that s. 122 was subject to s. 116 [66] but there was no breach by the Ordinance. 67

Justice Gaudron held that s. 122 should be read as being subject to s. 116. [68] However, her Honour could not come to a conclusion as to whether or not there was a restriction of the free exercise of religion in the case in hand.

Justice Dawson (with whom McHugh J agreed), held that the Territories are not parts of the Commonwealth, but rather are parts annexed to the Commonwealth and subordinate to it. Accordingly, Chapter V of the Constitution does not apply to the Territories. Similarly, s. 116 of the Constitution does not restrict the operation of s. 122. [69] Justice Dawson added:

... that if I am wrong in this conclusion, I would [hold] ... that the 1918 Ordinance contains nothing which would enable it to be said that it is a law for prohibiting the free exercise of religion. [70]

Actions for Damages for Infringement of Constitutional Rights

Chief Justice Brennan and Gaudron J found no basis upon which an action for damages would arise upon the breach of a constitutional right. [71] Justice Toohey also answered in the negative without giving reasons, [72] whilst Dawson, McHugh and Gummow JJ decided there was no need to answer.

Limitation Periods

Justice Gaudron held that s. 79 of the Judiciary Act 1903 (Cth) should be construed as intended to apply to the High Court, notwithstanding that the language of the section does not adequately reflect the nature of the jurisdiction or the manner of its exercise. Accordingly, ss. 64 and 79 of the Judiciary Act 1903 (Cth) "pick up" the provisions of the Limitation Act 1981 (NT) and make them applicable to the plaintiffs' actions. [73]

Comment

In Kruger and Bray, the challenge was restricted to the constitutional validity of the Ordinance. The legal basis of the actions concerned the constitutional validity of the impugned provisions, not "whether the actions complained of were authorised by the provisions" [74] The unsuccessful outcome for the plaintiffs in Kruger and Bray will see litigation in this area move to common law claims. These claims will proceed on the basis of separate and distinct causes of action such as "wrongful imprisonment due to unlawful conduct, unlawful/ultra vires conduct, breach of duty of guardian, breach of statutory duty, breach of fiduciary duty and breach of care." [75] The Kruger and Bray decisions will not unduly affect these common law causes of action.

Telling Our Story and After the Removal

Introduction

After the Removal, was the ALSWA's submission to the National Inquiry. The submission was made on behalf of the 710 clients who provided personal histories of their removal, their parents' removal, their siblings' removal, or their children's removal. Much of the information collected from ALSWA clients had already been recorded in Telling Our Story, which was launched after the announcement of the National Inquiry but before the terms of reference were finalised and the inquiry officially launched.

Telling Our Story

Telling Our Story, like the Wilson Report, did not attempt to be a comprehensive scholarly work or legal treatise. Telling Our Story was written in the form of individual and family case studies, and selective quotes. The case studies were a combination of personal evidence and documentation from native welfare and child welfare files. [76] The case studies and individual quotes provide a picture of pain and suffering, enduring effects, confusion and "official" actions to deny the children their family contacts and cultural identity.

Some of the historical documentation reproduced in Telling Our Story was used to support the argument that the systematic removal of Aboriginal children from their families in Western Australia was for the purpose of assimilation and "... an attempt to "breed out" the Aboriginal race". [77] It is argued that this amounted to genocide. [78] Telling Our Story cites a number of comments by AO Neville, the Chief Protector of Aborigines in Western Australia from 1915 to 1940 to support its assertions of genocide. For example:

Mr. Neville holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated and absorb the half-castes into the white population. Sixty years ago, he said, there were over 60,000 full-blooded natives in Western Australia. Today there are only 20,000. In time there would be none. Perhaps it would take one hundred years, perhaps longer, but the race was dying. The pure-blooded Aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half caste families of twenty and upwards. That showed the magnitude of the problem. In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mother and reared in accordance with white ideas. [79]

Telling Our Story placed governments, especially the Western Australia Government, on notice of the remedies being sought by Indigenous people who were removed from their families. [80] Further, the release of Telling Our Story, provided information to the general public and the media on the issue of removal of Indigenous children from their families in Western Australia. [81]

After the Removal

The approach taken in After the Removal is outlined in the introductory chapter:

...This submission records the experiences, effects and losses identified by those who provided information to the ALSWA. The clients also set out a number of recommendations to remedy the losses that they have suffered and continue to suffer. Some clients made strong recommendations on the current unacceptable involvement of Aboriginal adults in the criminal justice system, and Aboriginal children with the child welfare and criminal justice systems. The wishes of the ALSWA's clients on how to remedy their losses and to reduce their children's involvement with the child welfare and criminal justice systems, have shaped the form and content of this submission to the National Inquiry. [82]

In After the Removal, the ALSWA submitted that compensation as appears in terms of reference (c) of the National Inquiry, [83] should "include the more encompassing term `reparation'". [84] Reparation involves material and non-material redress, and includes restitution, compensation, rehabilitation and satisfaction and guarantees of non-repetition. [85] In After the Removal, it is argued "that principles to justify reparation can be drawn from domestic and international law, notions of justice and morality and the reconciliation process between Aboriginal and non-Aboriginal Australia". [86] The National Inquiry accepted that compensation should encompass the broader notion of reparation. [87]

Stolen Generations National Workshop

A national workshop to examine issues concerning the removal of Indigenous children from their families was held in Alice Springs in September, 1996. A number of papers and workshop sessions were conducted [88] which covered litigation, rights to land, compensation (or reparation), access to archives and the National Inquiry. The National Workshop supported litigation against all Australian governments involved in the separation of Aboriginal children from their families. [89] The delegates' willingness to commence legal actions supports Kirby P's comment that the law `in proper cases, [can] be an instrument of justice in the indication of their [Aborigines] legal rights. [90]

The delegates also recommended the establishment of an Indigenous Stolen Generations National Secretariat. The National Secretariat would, inter alia, be responsible for:

* assisting state and territory organisations involved in Stolen Generations activities, in particular assisting with the national co-ordination of programs and facilitating the co-ordinated implementation of a Stolen Generations litigation strategy; and,

* the promotion of Stolen Generations interests within the non-Aboriginal and Aboriginal communities.

Wilson Report

Introduction

The Wilson Report, with its mixture of personal histories, historical documentation, statistical information, discussion and analysis on reparation, delivery of services for "those affected", Indigenous child welfare and Indigenous juvenile justice, is a very significant document in the advocacy for reparation to be made to Indigenous people who were removed from their families. As previously stated, the examination here is on the assertions of genocide and the reparation clauses contained in the Wilson Report. [91]

Genocide

Probably the most controversial aspect of the Wilson Report is its assertion and/or finding that the systematic removal of Indigenous children from their families amounted to genocide. This claim of genocide has generated much community and media debate. [92]

Genocide was first defined in detail at the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (`the Convention'). Australia ratified the Convention in 1949 and it came into force in 1951. Article II of the Convention defines genocide 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 a 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.

The policies of Indigenous child removal continued long after Australia had voluntarily ratified the Convention which prohibited such policies. The Australian practice of Indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. [93] The Wilson Report argues that the "forcible transfer of children can be genocide" [94] "plans and attempts can be genocide" [95] and "mixed motives" do not necessarily negate genocide. [96]

As noted above, the definition of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide includes the act of "forcibly transferring children of the group to another group". [97] To be considered genocide, the act(s) must be "committed with intent to destroy, in whole or in part" the target group. [98] The jurist Raphael Lemkin stated that genocide included:

Deliberate separation of families for depopulation purposes subordinated to the criminal intent to destroy or to cripple permanently a human group. The acts as such, and individuals are selected for destruction only because they belong to these groups. [99]

In respect to plans and attempts, the Wilson Report argues that an attempt to destroy is sufficient, total or actual destruction is not necessary.

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. [100]

This view concurs with the opinion of Yorran Distein. Distein states that the essence of genocide is not the actual destruction of a group, but the intent to destroy the group in whole or in part. He adds:

The murder of a single individual may be characterised as genocide if it constitutes a part of a series of acts designed to attain the destruction of the group to which the victim belongs ... [101]

The question of mixed motives is very important. The arguments against labelling the removal policies and practices as genocide, is that they were a "welfare measure", done in "the best interest" of the children removed. [102]

The Wilson Report writes:

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 then "useful" and "worthy" citizens, their training for labour and domestic service, their protection from malnutrition, neglect or abuse, the reduction of government support or idle dependants and the protection of the community from "dangerous elements". ...

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 pp 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 pp 12-13). [103]

There is conjecture as to when the international norm prohibiting genocide first existed. It is arguable that the prohibition of genocide did not achieve the status of a norm of customary international law prior to the

11 December 1946. [104] The Wilson Report states:

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. [105] The practice continued for almost another quarter of a century. [106]

The Wilson Report's finding that the practices of "removal" amounted to genocide, is, at least, prima facie at odds with the decisions in Kruger and Bray. As previously stated, all six justices in Kruger and Bray found against the genocide argument. That is, "[t]here ... [was] ... nothing in the [Aboriginal] Ordinance, according to it the ordinary principles of construction, which would justify a conclusion that it authorised acts `with intent to destroy, in whole or in part' the plaintiffs' racial group". [107] The legislation under challenge in Kruger and Bray was similar to legislation in other states such as the Aborigines Act 1905 (WA) and The Aboriginals Protection and Restrictions of the Sale of Opium Act 1897 (Qld). This does not necessarily mean the allegations of genocide as made in the Wilson Report now have no merit or standing. As Toohey J repeatedly said in Kruger and Bray, "it is necessary to keep in mind that it is the validity of the Ordinance, not any exercise of power under the Ordinance, which is the subject of these proceedings". [108]

The Kruger and Bray cases had not reached trial. Thus there was quite properly, no comprehensive analysis of the practices conducted pursuant to the impugned provisions of the Ordinance. The High Court was not engaged in collecting and assessing wide ranging testimonial and documentary evidence in respect to the forced removal of Indigenous children from their families. It is such evidence which led the National Inquiry to conclude that the removal practices amounted to genocide. Normal statutory interpretation and construction of the relevant legislation may not lead to the conclusion of genocide, but the practices and documentary evidence, such as that from the transcripts of proceedings at the initial conference of the Commonwealth and State Aboriginal Authorities, Parliament House, Canberra, April, 1937, [109] did draw the National Inquiry to conclude genocidal intent and practices. [110]

Reparation

The National Inquiry accepted a more comprehensive interpretation of compensation in term of reference (c). [111] The National Inquiry recommended that van Boven's form of reparations [112] should be adopted. These included acknowledgment and apology; guarantees against repetition; measures of restitution; measures of rehabilitation; and monetary compensation. [113]

The term of reference (c) required an examination of "the principles relevant to determining the justification for compensation for persons or communities affected by such separations". The Wilson Report's approach to this term of reference was two-fold. First, to identify a wrong (or wrongs). Secondly, to assess the harm suffered (damage) by "using established principles".

Common law rights and human rights

The Wilson Report identified denial of common law rights and breaches of human rights in respect to the process of removal of Indigenous children from their families. [114] The Wilson Report writes:

* 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 protection 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 victim of gross violations of human rights. [115]

In respect, to "denial of common law rights", the Wilson Report discusses:

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. abuse of power in the removal process; and

4. breach of guardianship obligations on the part of Protectors, Protection Boards and other "carers". [116]

In respect to deprivation of liberty, abolition of parental rights and abuse of power, common law legislation is problematic, because "legislation authorised the majority of removals". However, there are possibilities that some abuse of powers may allow an action for breach of statutory duty, especially if the actions were ultra vires. [117]

"Breaches of guardianship obligations" open up possible action for breach of fiduciary duty on the part of governments, protectors, protection boards and other "carers." Legislation which allowed removal did not authorise breach of fiduciary duty -- "[t]he fiduciary duty was `to care for, protect and rear' the ward". [118]

The Wilson Report identified three main breaches of guardianship duties (fiduciary duties): "failure to provide care to contemporary standards", "failure to prevent harm"; and "failure to involve parents in decision-making about their children'. [119] There is also a suggestion that `the very act of removing them [children] from parental or other family care' was a breach of fiduciary duties of Protectors and Boards. [120] However, no legal authority or analysis of this suggestion is provided.

The Wilson Report fails to provide a comprehensive legal analysis on identified breaches of guardianship duties. Given the importance of possible breaches of fiduciary duties for civil claims, [121] a technical legal analysis which examined the various elements of a breach of fiduciary duty claim would have been useful. This would also have "more emphatically" highlighted to governments and their advisers, the unlawful nature (even based on "the legal standards of the time") of the institutional or foster care of many Indigenous children who were removed. This in turn, would more effectively support the case for reparation and make it more difficult to attack the credibility of the Wilson Report. Further, it would be more difficult to sustain the argument that institutionalisation of Indigenous children under the removal policies and practices were the "standards and values of the time" and therefore there is nothing to apologise for.

In respect to "breach of human rights", the Wilson Report discusses the breaches within the context of the United Nations Charter 1945, the Universal Declaration of Human Rights 1948, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, and the International Convention on the Elimination of All Forms of Racial Discrimination 1965.

After identifying the common law and human rights violations committed on those removed and/or their families, the Wilson Report turns to the issue of the right of reparation. This is discussed within a human rights paradigm. [122] The report notes that a number of international human rights instruments binding on Australia create a duty to make appropriate reparation for violations of human rights. [123] In summary, the Wilson Report states:

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, 192). This obligation passes from the violating government to its successors until satisfaction has been made (Luntz 1989, 209).

Reparation components

We now turn to examine the various components of reparations as utilised by the Wilson Report. As previously indicated, these components are acknowledgment and apology; guarantees against repetition; measures of rehabilitation; and monetary compensation. [124]

(i) Acknowledgment and apology

For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation. [125] The Wilson Report recommended that all Australian Parliaments, State and Territory police forces, and churches and other relevant non-government agencies, "acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal" and apologise for the wrongs committed. [126] There is also a recommendation for a "Sorry Day". [127]

The demand for acknowledgment of the truth and the delivery of an apology has generated much community debate. The significance of such a demand should not be underestimated. Pritchard writes "[t]he Inquiry agreed that the first step in healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology." [128] Unfortunately the Prime Minister of Australia and his government continue to decline to make an official apology. [129]

Guarantees against repetition

It is important to include measures to prevent such human rights violations in the future, as perpetrated by Australian Governments with their removal practices and policies, as an aspect of reparation. Emphasis should be placed on informing the wider Australian community about the history and continuing effects of separation and to promote awareness of the human rights violations suffered by Indigenous people, families and communities as a result of separations. Recommendations made in respect to guarantee against repetition included school curricula and professional training to include the study of forcible removal. [130] Recommendation 10 argues for the Commonwealth Government to `legislate to implement the Genocide Convention' into domestic law. [131]

Restitution

In respect to restitution, returning to country was identified as a critical step in the reunification and assistance process. To facilitate return to country, support is required for "returnees" and for the communities receiving them. The Wilson Report made recommendations in relation to "assistance to return to country", [132] the fostering of Indigenous language, culture and history [133] and the accreditation of Indigenous organisations such as Link-Up and Aboriginal and Islander Child Care Agencies `for the purposes of certifying descent from the Indigenous people of Australia and acceptance as Indigenous by the Indigenous community". [134] Reparation of a restitutive nature can also be found in the recommendation dealing with delivery of services to those affected. [135]

(iv) Rehabilitation

The Wilson Report accepted van Boven's recommendation that reparations include rehabilitation measures, such as `legal, medical, psychological and other care services'. These measures require culturally appropriate delivery of services such as mental health and counselling services, [136] and parenting, and family support programmes. [137] Rehabilitative measures are essential to "address special needs arising out of separation and to promote the economic, social and cultural well-being of those affected by forcible removal". [138]

(v) Monetary Compensation

The awarding of monetary compensation for those removed and/or those affected by the removals received opposition from the Commonwealth Government. [139] 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". [140]

Professor Graycar suggests that the Commonwealth Government's excuses for not providing compensation to Indigenous peoples who had been affected by removal policies are little more than a rhetorical device. 141 Further she states:

Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that what is, or is not, compensatory 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." [142] Judges often 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 ...". [143]

Without monetary compensation, the full range of reparation measures, which are imposed by international law obligations would be missing.

The Wilson Report strongly argued and recommended: [144]

[t]hat 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 & fulfilment;

7. Loss of native title rights;

8. Labour exploitations;

9. Economic loss;

10. Loss of opportunities. [145]

In regards to civil claims for compensation the Wilson Report writes:

[d]ifficulties 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 ... , 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 involve great expense for governments to defend these claims. [146]

Recognising the difficulties with civil actions for compensation, the Wilson Report sensibly recommended a "National Compensation Fund" [147] with the fund being administered by a "National Compensation Fund Board" [148] according to prescribed procedures. [149] It is recommended that a prescribed minimum lump sum be paid to those forcefully removed from the "National Compensation Fund" [150] and

[t]hat 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. [151]

The Wilson Report concludes the discussion on monetary compensation with the recommendation that any "statutory monetary compensation mechanism" should not prohibit the right to common law action but a "claimant successful in one forum should not be entitled to proceed in the other". [152]

Conclusion

It is crucial that governments at all levels recognise the enduring effects of the assimilation policies and removal practices and respond accordingly. It seems obvious that, at a fundamental level, the Indigenous people who have been affected by the removal policies of Australian governments at all levels are owed a moral obligation to be provided with an effective and comprehensive system of reparation, in response to the wrongs of the past. To this extent the Wilson Report provides governments with a blueprint to confront and tackle the enduring legacy of past removal practices and to amend current laws, policies and practices that still lead to significant institutionalisation of Indigenous people, especially Indigenous children.

Over 500 writs, [153] arguing among other things breach of fiduciary duty, have already been lodged and more are likely to be on the way [154] . The frequency of civil actions is likely to significantly increase if the demands of removed Indigenous people are not positively responded to by governments, churches and other relevant non-government agencies. These demands have been documented in a number of submissions to the National Inquiry and transferred by the Wilson Report into 52 recommendations. The Kruger and Bray decisions will not deter common law actions. The Kruger and Bray cases were based on constitutional arguments, not common law rights. Regardless of the outcome of any litigation, the struggle of the stolen generations will continue until a satisfactory resolution is reached. Indeed if the Australian legal system fails them, it is likely that the international arena will be next. The issues surrounding the removal of Indigenous children from their family will not go away, nor will the demands for reparation be silenced.


Endnotes

* Tony Buti is a law lecturer at Murdock University Law School and a solicitor and barrister of the Supreme Court of Western Australia. I am grateful for the research assistance of June Kenny in preparing this article.

[1] In the Commonwealth Parliament on 25 May 1997.

[2] HREOC, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, (Canberra: Commonwealth of Australia, April 1997). Herein referred to as "the Wilson Report".

[3] Sir Ronald Wilson, the President of HREOC, like all other HREOC commissioners, was a commissioner of the National Inquiry. Additional female Indigenous commissioners came from all States and Territories.

[4] The National Inquiry was launched on 10 August 1995, in Adelaide. The National Inquiry terms of reference were originally announced on 11 May 1995 by the then Attorney-General of Australia, Michael Lavarch. However, those terms of reference were revoked and replaced with similar but wider terms of reference, including the examination of compensation principles on 2 August 1995. The terms of reference of the National Inquiry were:

. tracing past laws, practices and policies that lead to the removal of Aboriginal and Torres Strait Islander children from their families and the effects of those laws, practices and policies;

. examining compensation issues;

. examining current laws, practices and policies with respect to services and procedures available to those affected by removal and recommending appropriate changes; and

. examining current laws, practices and policies with respect to child placement and care of Aboriginal and Torres Strait Islander children and recommending appropriate changes, taking into account the principle of self-determination. [See 1997 2(2) AILR 286]

[5] See below for meaning of the term "reparation".

[6] Butler R, speaking at the workshop on removal of Indigenous children at the Australian Reconciliation Convention in Melbourne, 26 May, 1997, stated that the Secretariat of National Aboriginal and Islander Child Care, along with other organisations and individuals had been lobbying governments to hold an inquiry since the late 1980s.

[7] Joy Williams v The Minister, Land Rights Act 1983 and Anor, unpublished decision, Supreme Court of New South Wales, No 10257 of 1993, 25 August 1993.

[8] Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497. See below for discussion.

[9] Unpublished. Refer to an earlier version of the paper, Merkel R, "Government Culpability For The Forced Removal of Aboriginal Children From Their Families", (1990) 2(47) Aboriginal Law Bulletin 4.

[10] No. M21 of 1995, (filed in the High Court of Australia, Melbourne Office of the Registry).

[11] No. 05 of 1995 (filed in the High Court of Australia, Darwin Office of the Registry).

[12] The "Stolen Generations Litigation Unit" Northern Australian Aboriginal Legal Service, has since filed more than 560 actions in the Federal Court in Darwin. See Storey M, "The Stolen Generations: More than Just a Compo Case" (1996) 3 (86), Aboriginal Law Bulletin.

[13] Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of Australia [1997] HCA 27; 146 ALR 126. [Kruger & Ors v the Commonwealth of Australia (1996) 3(18) ALB 11; (1997) 2(3) AILR 371]

[14] ALSWA, Telling Our Story: A Report by the ALSWA (Inc) on the removal of Aboriginal children from their families in Western Australia, (Perth: ALSWA (Inc), 1995).

[15] Via proof of evidence and/or questionnaire-statement from over 700 people.

[16] Buti T, After the Removal: A Submission by the ALSWA (Inc) to the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, (Perth: ALSWA (Inc) May ,1996).

[17] Telling Our Story was also submitted to the National Inquiry.

[18] Stolen Generations National Workshop.

[19] Refer to The Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Aid Service (Eds), Proceedings of the First National Workshop, Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Service, Alice Springs, September, 1996, at 1.

[20] Another case which involved issues related to the removal of Indigenous children from their families is Thorpe v Commonwealth of Australia [No. 3] http://www/australii.edu.au/do2/dis.../unrep321.html, 12 June 1997. The plaintiffs' argument concerned declarations of fiduciary obligations owed by Commonwealth to Aboriginal people, the issue of genocide and advisory opinions from the International Court of Justice. The writ and statement of claim was set aside for want of jurisdiction and applications for praecipes for the issue of subpoenas was dismissed.

[21] The writer of this paper was the editor and main author of Telling Our Story, and the author of After the Removal.

[22] The length of the Wilson Report does not allow a detailed analysis of the whole report to take place in this paper.

[23] The relevant sections of the Limitation Act 1969 (NSW), are as follows:

[14] (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period ...

(b) A cause of action founded in tort, including a cause of action for damages for breach of statutory duty ...

[23] Sections 14 ... do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief.

60G. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

By s. 60G(1) the section applies to a cause of action `founded on negligence, nuisance or breach of duty, for damages for personal injury.'

[24] Supra, n 8, 508.

[25] Ibid.

[26] Ibid, 513.

[27] (1992) 96 DLR (4th) 289.

[28] Supra, n 8, 514.

[29] Ibid.

[30] Ibid, 514-515.

[31] The impugned provisions were ss. 6, 7 16 and 67 of the Ordinance.

[32] The factual issues in the actions before the High Court have not been tried. From an earlier interlocutory hearing, Brennan CJ reserved seven "questions of law arising on the pleadings in each of the cases for the opinion of the Full Court" (Kruger v The Commonwealth (1995) 69 ALR 885). If the plaintiffs failed on questions one and two, which they did, the other five questions became unnecessary to answer. The first two questions were in the following terms:

Q1 Is the legislative power conferred by s. 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paras. 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms or provisions referred to in para. 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?

Q2 Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in para. 29 of the

Amended Statement of Claim, a breach of which by:

(a) an officer of the Commonwealth; or

(b) a person acting for and on behalf of the Commonwealth;

give rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?

33. Supra, n 13, 138 per Brennan CJ, 147 per Dawson J, 167 per Toohey J, 187 per Gaudron J and 218 per McHugh J.

[34] Ibid, 187.

[35] Ibid, 154 per Dawson J, 172 per Toohey J, 192-3 per Gaudron J, 218 per McHugh J and 233 per Gummow J.

[36] Ibid, 154 per Dawson J, 218 per McHugh J and 239-43 per Gummow J.

[37] Ibid, 154 per Dawson J, 218 per McHugh J.

[38] Ibid, 193-4.

[39] Ibid, 141 per Brennan CJ, 155-8 per Dawson J, 195 per Gaudron J, 218 per McHugh J and 227-8 per Gummow J.

[40] [1992] HCA 29; (1992) 174 CLR 455.

[41] Supra, n 13, 179-82.

[42] Ibid, 182.

[43] Ibid, 175-8 per Toohey J and 195-201 per Gaudron J.

[44] Ibid, 179.

[45] Ibid, 201.

[46] Reserved questions 3: If yes to question 1 or question 2, are any and which matters pleaded in subparas. (d) and (c) of para. 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?

[47] Supra, note 13, 218.

[48] In 1977 the residents of the Northern Territory were given the right to vote in a referendum to amend the Constitution.

[49] Supra, n 13, 219.

[50] Ibid, 160 per Dawson J and 230 Gummow J.

[51] Ibid, 141-2.

[52] Ibid.

[53] Pursuant to Article II of the Convention on the Prevention and punishment for the Crimes of Genocide (`Genocide Convention'), genocide is defined inter alia to mean:

... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:...

(d) Imposing measures, intended to prevent births within the group;

(e) Forcible transferring of children of the group to another group.

[54] Supra, 13, 137 Brennan CJ, 161-2 per Dawson J, 175 per Toohey J, 190 per Gaudron J, 220 per McHugh J and 230-2 per Gummow J.

55. Ibid, 137.

[56] Ibid, 161-2 per Dawson J and 220 per McHugh J.

[57] Ibid, 162-3.

[58] Ibid, 175.

[59] Ibid.

[60] Ibid, 190.

[61] Ibid, compare with Dawson J, 162-3.

[62] Ibid, 232.

[63] Ibid.

[64] Ibid, 138.

[65] Ibid, 173.

[66] Ibid, 238.

[67] Ibid, 233.

[68] Ibid, 202-3.

[69] Ibid, 152 per Dawson J and 218 per McHugh J.

[70] Ibid, 153.

[71] Ibid, 142 per Brennan CJ and 205 per Gaudron J.

[72] Ibid, 182.

[73] Ibid, 215-16

[74] Ibid, 167 per Dawson J. Executive power granted by statute will be bound by constitutional limitation and guarantees. See James v Cowan [1932] UKPCHCA 2; (1932) 47 CLR 386, 396.

[75] Refer to Schaefer M, "The Stolen Generations: In the Aftermath of Kruger, Bray v The Commonwealth" (1990) 4 (3) UNSW Law Journal Forum 22, 24.

[76] Refer to Chapter 4 of Telling Our Story, above n 14, for individual and family case studies. Chapter 5 provides a comprehensive personal recollection from one family (excludes official documents) and appendix B contains a number of brief profile summaries from ALSWA clients.

[77] Ibid, 2.

[78] Ibid, 2, 175-176.

[79] The Telegraph, 5 May, 1937.

[80] The Western Australian Government refused to make a comprehensive response to the recommendations of Telling Our Story until after the completion of the National Inquiry. However, the then Minister for Aboriginal Affairs in Western Australia pledged to provide some formal written response in early 1996 to the Telling Our Story recommendations (no response has been received at the time of writing) -- meeting between the writer, Acting Chief Executive Officer ALSWA, Minister and his Principal Private Secretary, December, 1995.

[81] With relevance to most parts of Australia.

[82] Supra, n 16, 11-12.

[83] Terms of reference (c) "examine the principles relevant to determining the justification for compensation for persons and communities affected by such separations".

[84] Supra, n 16, 72.

[85] Ibid. Also refer to van Boven T, (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation of victims of gross violations of human rights and fundamental freedoms: Final Report (van Boven's Report), UN Doc. E/CN. 4/Sub. 2/1993/8, 2 July, 1993, at 7. Also refer to Wilson Report below.

[86] Ibid, 72

[87] See below and Wilson Report.

[88] There were global workshops (all delegates together) and State based workshops.

[89] Supra, n 12, 17-18.

[90] Williams, above n 8, 515.

[91] Two statements made in the Wilson Report should be corrected or amended. First, the report states that "[t]he Secretariat of National Aboriginal and Islander Child Care and Link-Up (NSW) campaigned for a national inquiry into the issue (of removal of Indigenous Children from their Families". HREOC, above n 2, 18. Not to mention the work of the ALSWA and its former chief executive officer, the late Rob Riley in campaigning for a national inquiry is a major omission. Second, the Wilson Report commented that the 1994 Going Home Conference in Darwin, "led to the initiation of two civil compensation claims" (Williams in New South Wales and Kruger and Bray in the Northern Territory). Ibid. Kruger and Bray, yes, but not Williams. Williams was filed in the Supreme Court of New South Wales in January, 1993.

[92] See for example,

(1) "Stolen Children `must be paid'", The Australian, 21 May 1997;

(2) "How do we reconcile the stolen children?", The Australian, 21 May 1997;

(3) "Long delay awaits victims of forced removal", The Australian, 27 May 1997;

(4) "Acts of genocide persist, Dodson says", The Australian, 5 June 1997.

[93] Supra, n 2, 266.

[94] Ibid, 271-272.

[95] Ibid, 272-273.

[96] Ibid, 272-274.

[97] Convention on the Prevention and Punishment of the Crime of Genocide, Article II

[98] Ibid.

[99] Lemkin R, "Genocide as a crime under International Law", (1947) 41 American Journal of International Law, 145, 147.

[100] Supra, n 2, 272.

[101] Distein Y, "International Criminal law" (1975) 5 Israel Yearbook on Human Rights 55, quoted in HJ Steiner and P Alston, International Human Rights in Contact: Law, Politics, Morals, Clarendon Press, Oxford, (1996), 1028.

[102] For example, refer to "How do we reconcile the stolen children?", The Australian, 21 May 1997.

[103] Supra, note 2, 273-274.

[104] That is, when United Nations General Assembly Resolution 96(1) "affirming" the status of genocide as a crime under international law was passed. However, it should be noted that the United States Court of Appeal in Hugo Princz v Federal Republic of Germany 26F. 3d 1116 at 65, 1 July 1994 (US App.) stated that genocide was a crime under customary international law prior to the outbreak of World War II.

[105] Confirmed by Justice Brennan in Polyukovich 199, 587.

[106] Supra, n 2, 275.

[107] Supra, n 13, 137 per Brennan CJ, 161-2 per Dawson J, 175 per Toohey J, 190 per Gaudron J, 220 per McHugh J and 230-2 per Gummow J.

[108] Ibid, 175 per Toohey J.

[109] Supra, n 14, 205-213.

[110] The principal Commissioners of the National Inquiry, Sir Ronald Wilson and Mick Dodson, have strongly argued that the validity or credibility of the Wilson Report is not diminished by the Kruger and Bray decisions. They argued that the High Court decision revolved around constitutional interpretation, not a comprehensive fact finding exercise as conducted by the National Inquiry. Refer to Mick Dodson, "Judgment exposes need for Bill of Rights" The Australian, 1 August 1997. Further it is argued that the Wilson Report is a report looking at moral responsibility, not just strict legal questions. Refer to Interview: Sir Ronald Wilson, ABC Radio PM Program, 1 August, 1997, ABC Television 7.30 Report, 2 August, 1997.

[111] Numerous submissions to the National Inquiry such as, the ALSWA submitted that "[C]ompensation in th[e] context [of the National Inquiry] should, and probably is, intended to include the more encompassing term `reparation'." Refer Supra, n 16, 72.

[112] Van Boven T, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report submitted by Theo van Boven, Special Rapporteur, UN Doc: E/CN. 4/Sub. 2/1993/8; T van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, prepared by Theo van Boven pursuant to Sub-Commission resolution 1995/117, UN Doc:{/CN4/Sub2/1996/17, 24 May 1996}.

[113] Supra, n 2, recommendation 3.

114.The Wilson Report also reports that many individuals were subjected to civil and/or criminal wrongdoing -- often of a sexual nature. Refer above n 2, 278.

[115] Supra, n 2, 277-278.

[116] Ibid, 252. The common law rights are discussed at 252-262.

[117] See generally, Board of Fire Commission of NSW v Ardouin [1961] HCA 71; (1962-1963) 109 CLR 105 at 108-110, Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397, and Webster and Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598.

[118] KM v HM 1992 page 323, refer above n 2, 259.

[119] Supra, n 2, 259-265.

[120] Ibid.

[121] In addition to the previously stated importance, another significance of fiduciary actions is that actions based on equitable compensation will not be barred by limitation statutes -- at least in some jurisdictions. Refer to Williams, Supra, n 8.

[122] Supra, n 2, 279-280.

[123] For example, article 8 of the Universal Declaration of Human Rights 1948 (which is not strictly binding), article 2(3) of the International Covenant on Civil and Political Rights (1966), article 19 of the Declaration on the Protection of All Persons from Enforced Disappearances, the Declaration on 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 as does customary international laws.

[124] Refer to Pritchard S, "The Stolen Generations and reparations" (1997) 4 (3) UNSW Law Journal Forum 28, which examines `the application by the [National] Inquiry of the concept of Reparations to the forcible removal of Indigenous children in Australia.

[125] Orentlicher D, "Addressing Gross Human Rights Abuses: Punishment and Victim Compensation," in Henkin L and Hargraves J (Eds), Human Rights: An Agenda for the Next Century (1994), 457.

[126] Supra, n 2, Recommendations 5 and 6, 284-292.

[127] Ibid, Recommendation 7, 282-293

128. Pritchard S, "The Stolen Generations and Reparations", (1997) 4 (3) UNSW Law Journal Forum, 28.

[129] Cf: Canadian Government "apology" for the forced removal of Indian native children from their families. Refer to Sydney Morning Herald, 9 January 1998.

130. Supra, n 2, Recommendations 8 and 9, 295.

[131] Ibid, 294-295. The lack of domestic incorporation of the Genocide Convention was noted in Kruger and Bray, above note 13, 23 of 91 per Dawson J, 31 of 91 per Toohey J and 62 of 91 per Gummow J; cf: 39-40 of 91 per Gaudron J comments on genocide being contrary to fundamental principles of common law.

[132] Ibid, Recommendation 11, 297.

133. Ibid, Recommendation 12, 300.

134. Ibid, Recommendation 13, 301.

[135] Ibid, Part 5.

136. Ibid, Recommendation 33, 396, Recommendation 34, 397, Recommendation 35, 397, Recommendation 37, 401.

137. Ibid, Recommendation 36, 399.

138. Supra, n 130, 29.

[139] Commonwealth Government, (Submissions to) National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, 1996, 26-32. Also refer to, "Long delay awaits victims of forced removal", The Australian, 27 May 1997, "No compo for stolen children: Williams", Canberra Times, 22 May 1997.

140. Supra, n 2, 306.

141. Graycar R, `Compensation for the Stolen Children: political judgments and community values', (1997) 4 (3) UNSW Law Journal Forum, 24,25. In its formal response to the Wilson Report, the Commonwealth Government again refused to award compensation to those removed from their families. Refer to Commonwealth Government, "Bringing them Home Commonwealth Initiatives", Parliament House, Canberra, 16 December 1997.

142. Ison T, The Forensic Lottery: A Critique of Tort Liability as a System of Personal Injury Compensation, Staples Press (1967) and see more generally; P Cane, Accidents, Compensation and the Law, Butterworths (5th ed 1993); H Luntz, The Assessment of Damages for Personal Injuries, Butterworths (3rd ed 1990).

143. Supra, n 141, 24 - 25.

144. Supra, n 2, Recommendation 14, 304.

[145] Ibid, 303-307.

[146] Ibid, 305.

147. Supra, n 2, Recommendation 16, 310.

148. Ibid.

149. Ibid, Recommendation 17, 311.

[150] Ibid, Recommendation 18, 312. "That it be a defence to a claim (for minimum lump sum) for the responsible government to establish that the removal was in the best interest of the child".

[151] Ibid, Recommendation 19, 312.

[152] Ibid, Recommendation 20, 313. Refer to 302-313 for discussion on the monetary compensation issue.

153. Refer Supra, n 12.

154. ALSWA was preparing a number of test cases to be filed in the Supreme Court of WA.

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