Right: Bruce Trevorrow, an aboriginal man removed from his family when he was a child, was awarded $525,000 compensation in 2007. This was the first claim for "stolen generations" compensation to succeed.
Arguments against the federal government paying compensation to the stolen generations
1. The federal apology has symbolic value without compensation being paidIt has been claimed that the apology is significant in its own right, without having to serve as a precursor to financial compensation.
Tom Calma, an Aboriginal and Torres Strait Islander Social Justice Commissioner, has stated, 'What many people have failed to understand over the past decade has been the emotional harm that has been caused by the refusal to say sorry. On the face of it - a simple act - described in denigrating terms by some as a merely "symbolic" action relating to events in our distant past.
For many of the stolen generations, it is so much more than this. The refusal to apologise has amounted to a denial of the life experiences of many of the stolen generations.
This has been reflected in vicious debates about whether children were stolen or saved; in debates about whether an 'X' on a page amounts to "consent" to removal and therefore invalidates a person's claim to be forcibly removed.'
Paul Keating, who as prime minister commissioned the Bringing Them Home report in 1995, has said that words were more important than money. Mr Keating stated, 'The most important thing is the sorry. The most important thing is the national emotional response. I don't believe that these separations or that sadness will ever be settled in a monetary sense.'
Michael Mansell, the Legal Director of the Tasmanian Aboriginal Centre, has stressed that although he wants compensation for victims of the Stolen Generations, the apology in its own right is significant. Mr Mansell has stated, 'To allow us all to move beyond dealing with the Stolen Generations ...[these people] need someone at the highest level to officially explain why it was they were taken ... what did I do that allowed officials to remove me from my family and my community and destroy my life forever...
The importance of the apology ... [is that] as long the Prime Minister gives a true and honest account of why these children were taken that will provide some form of closure for those children.'
Numerous less prominent Aboriginal Australians reacted positively to Kevin Rudd's national apology. Torres Straits Islander, Lydia George, from Erub Island, said, 'The first speech was very symbolic ... I was thinking of my granddaughter and her future is now, not tomorrow. She'll face a new future that will be bright. The healing process has begun.'
Another Aboriginal Australian, Ray Finn, from Oodnadatta, South Australia also said, 'My family had been affected directly and I felt like the chain had finally broke from us. There's still racism to deal with but hopefully from this day we'll go forward together.'
2. The federal apology involves no legal obligation for compensation
A number of legal authorities have stated that the federal apology to the Stolen Generations implies no legal obligation to offer them financial compensation.
Hugh Macken, the president of the Law Society of New South Wales, has stated, 'There has been a lot of conjecture. I'd like to set the record straight concerning, in particular, the issue of compensation. Simply put, the facts speak for themselves. A formal apology to the Stolen Generations today will not open the floodgates to compensation...
Irrespective of this apology, indigenous Australians have always had a right to make compensation claims, just like any other Australian, for past wrongs. The success of each case is determined by evidence, not by an acknowledgement or an apology by the Commonwealth Parliament. The legal landscape has not changed one dot as a result of the most welcome apology made by the Commonwealth.
I think the issue of compensation needs to be addressed separately. So far only a few [indigenous Australians] have made claims. Irrespective of our view of the impact of this, for whatever reason, the victims of the stolen generation have not in the past brought their own claims for compensation and that's probably unlikely to change greatly in the future.'
Mr Macken indicated there had been less than a handful of claims brought since the states apologised more than a decade ago.
3. Those who believe themselves damaged by child resettlement already have legal avenues available to them
It has been repeatedly stated that a federal compensation fund for members of the Stolen Generations is not necessary as those who believed they have been harmed can take action against the state or territory governments through the courts.
As recently as January 29, 2008, the Prime Minister, Mr Kevin Rudd, stated, 'Since the Stolen Generation report came out years and years ago, it has been open for any individual, Aboriginal person affected by that to engage their own legal actions through the courts of their State or Territory. That's fine.'
Some individuals, such as Bruce Trevorrow from South Australia, who was the first to win such a case in August 2007, have managed to prosecute state governments for compensation.
Mr Neville Austin is about to launch Victoria's first stolen generations claim. This is also the first claim to have been foreshadowed since the federal Government's formal apology. It has been suggested the suit could trigger legal action by indigenous people around Australia.
Mr Austin has said he was taken from his mother in 1964, when he was just five months old, after he was admitted to the Royal Children's Hospital with a chest infection. He lived in foster homes and orphanages, where he was ostracised for the colour of his skin, the newspaper said.
Mr Austin's solicitors have briefed barrister Jack Rush, QC, who was part of the legal team that won a $4 billion payout from James Hardie Industries for former workers exposed to lethal doses of asbestos.
4. Many of the Stolen Generations were offered opportunities and often saved from neglect or abuse
It has been argued that a number of the fundamental claims made about the supposed Stolen Generations are inaccurate. According to this argument, many of those taken from their Aboriginal families were removed in order to protect them from neglect and abuse, while the largest category of those removed were actually taken into apprenticeships. These claims have been made by historian Keith Windschuttle who has challenged the work of historian Peter Read, upon whose research, Windschuttle claims, the Bringing Them Home report is primarily based.
Windschuttle has noted, 'I ... found that, although popular songs and the Bringing Them Home report gave the distinct impression that most children were removed when they were babies or toddlers, there were hardly any in this category. The archive files on which Read relied show that between 1907 and 1932, the NSW authorities removed only seven babies aged less than 12 months, and another 18 aged less than two years. Fewer than one-third of the children removed in this period were aged less than 12 years. Almost all were welfare cases, orphans, neglected children (some severely malnourished), and children who were abandoned, deserted and homeless.
The other two-thirds were teenagers, 13 to 17 years old. The reason they were removed was to send them off to be employed as apprentices. In reality, the NSW Labor governments were not stealing children but offering youths the opportunity to get on-the-job training, just like their white peers in the same age groups.
Read knew these Aboriginal youths were being apprenticed, though he never admitted they constituted the great majority of those removed. He claimed the authorities regarded them as stupid and consigned them to degrading jobs: the boys to agricultural work and the girls to domestic service. But at the time, this is where most white Australians were also employed. These were the two biggest single employment categories for men and women. The government was not asking Aborigines to take occupations any more onerous or demeaning than those of hundreds of thousands of their white countrymen.
Moreover, these teenagers were not removed permanently, as the charge of genocide infers. The majority of them returned home to their families when they turned 18 and their apprenticeship was complete. The archival records show this clearly, and Read found the same when in the '80s he recorded a little-publicised oral history of the Wiradjuri people.'
According to findings such as Windschuttle's the policy of resettlement of Aboriginal young people was often not forced and generally done for the apparent benefit of those concerned. Those who believe as Keith Windschuttle does would claim that such policies are not grounds for compensation.
5. Aboriginal welfare can be advanced more effectively through means other than paying compensation
The Prime Minister, Kevin Rudd, and other key members of the Labor Government, have stated that aboriginal welfare can be advanced more effectively through directing government money toward improvements in Aboriginal health and education. It has been claimed that this is likely to benefit Aboriginal people more than paying compensation to victims of the Stolen Generation.
The Indigenous Affairs Minister, Jenny Macklin, has stated that the Government thought it was better to use federal funds to tackle indigenous disadvantage than set up a compensation scheme. Macklin has claimed, 'We have to decide where we will put the necessary federal government money and we think the best place to be is in addressing the terrible levels of disadvantage in housing, in health, in education.'
Similarly, the Prime Minister has indicated that the apology is not intended to act as a justification for compensation. However, in his apology speech, Mr Rudd pledged the following, 'within a decade to halve the widening gap in literacy, numeracy and employment outcomes and opportunities for indigenous Australians, within a decade to halve the appalling gap in infant mortality rates between indigenous and non-indigenous children and, within a generation, to close the equally appalling 17-year life gap between indigenous and non-indigenous in overall life expectancy ...'
The Prime Minister gave detailed indications in his speech of how his government would assist Aboriginal Australians. He stated, 'Let us resolve over the next five years to have every indigenous four-year-old in a remote Aboriginal community enrolled in and attending a proper early childhood education centre ... engaged in proper pre-literacy and pre-numeracy programs.
Let us resolve to build new educational opportunities for these little ones, year by year, step by step, following the completion of their crucial pre-school year.
Let us resolve to use this systematic approach to build future educational opportunities for indigenous children to provide proper primary and preventive health care for the same children, to begin the task of rolling back the obscenity that we find today in infant mortality rates in remote indigenous communities up to four times higher than in other communities.'
6. The cost of compensation would be prohibitive
It has been claimed that the fact of the federal apology to the Stolen Generations is likely to prompt a rash of claims and that the cost of meeting such claims is likely to be more than the federal government could meet.
As an example of the possible number of claims to be met, up to 40 indigenous Australians are preparing compensation claims against the Victorian Government following the federal government's official apology.
A Victorian man, Neville Austin, 44, is planning to launch Victoria's first stolen generation claim. His solicitors have briefed barrister Jack Rush QC, who was part of the legal team that won a $4 billion payout from James Hardie Industries for former workers exposed to lethal doses of asbestos.
In 2000 Maurie Ryan-Japarte, of the Stolen Generations Corporation estimated there were then some 650 litigants prepared to sue the federal Government for wrongs suffered as part of the Stolen Generations.
An even larger potential group of claimants has been suggested by historian Keith Windschuttle
Windschuttle has noted, 'Bringing Them Home claimed not one indigenous family has escaped the effects of forcible removal". Hence it recommended that virtually every person in Australia who claimed to be an Aborigine was entitled to a substantial cash handout. The Bruce Trevorrow case in South Australia provided a benchmark for what that sum should be a minimum of $500,000.
The Aboriginal population today numbers almost 500,000, living in about 100,000 families. Those who are serious about an apology should back it with a lump sum payment of $500,000 to each family, a total of $50 billion. Only an amount on this scale can legitimately compensate for such a crime and satisfy the grievances of activists such as Lowitja O'Donohue and Michael Mansell.'