Right: Cover of the 1997 Bringing them Home report into the forced removal of Aboriginal children from their parents.Arguments in favour of the federal government paying compensation to the stolen generations
1. The federal apology without compensation is an empty gestureThere are those who have claimed that to make an apology to the Stolen Generations without offering them financial compensation for the wrongs they have suffered makes the apology a hollow gesture.
This point has been put by historian Keith Windschuttle, who has argued, 'There is no doubt that the majority of Aboriginal people today believe the Stolen Generations story is true. If parliament agrees with them, but fails to offer compensation, it will reduce next week's apology to a politically expedient piece of insincerity that yet again humiliates Aborigines by showing we do not take their most deeply-felt grievances seriously.'
A similar point has been made by Noel Pearson, the director of the Cape York Institute for Policy and Leadership. Pearson has stated, 'If this issue [of reconciliation with Aboriginal Australia] is of such importance to the majority of Australians, then surely an appropriate fraction of the $30 billion tax cuts could be committed to compensation.
It is not possible to say there are no legal grounds for compensation, because the Trevorrow case established that the wrongs done against Stolen Generations member Bruce Trevorrow gave rise to a legal entitlement to compensation. It may be argued that the liability falls on the states rather than the commonwealth, but if the commonwealth is tomorrow assuming moral responsibility on behalf of the country [via the federal apology], why not assume the responsibility for redress?'
Andrew Lynch, the director of the Terrorism and the Law project at the Gilbert and Tobin Centre of Public Law, University of New South Wales, has stated, 'An apology without any attempt at atonement is a meanly given thing.
Damaged lives and destroyed families denied even the prospect of a remedy, however belated, can draw little solace from an apology alone. The minister's argument that instead of compensation it would be "far more productive to really put that money into addressing the very serious levels of disadvantage that still exist in indigenous communities" ignores that this is already an obligation upon the Government.
Closing the gap between Indigenous peoples and the rest of us is obviously vital - but let's not pretend that the provision of decent services, opportunities and the right to be protected from violence and abuse squares off any obligation the nation has to those individuals who were previously taken away from their families and cut off from their culture purely on the basis of their race.'
2. The federal apology lays the groundwork for compensation
There are those who claim the logic of the federal Government's formal apology to the Stolen Generations now demands an apology. That is, once a grievance of these dimensions has been acknowledged some financial recompense must be offered to those who have suffered.
In February, 2008, historian Keith Windschuttle, claimed, 'If the Rudd Government apologises to the Stolen Generations it should not stop at mere words. It should pay a substantial sum in compensation.
This was the central recommendation of the Human Rights Commission's Bringing Them Home report in 1997.
The charge that justified this, the report said, was genocide. This allegedly took place from the 1910s until the late '60s right across Australia. In some parts of the commonwealth it was still going on in the '80s.
None of the politicians who plan to apologise next Wednesday can avoid the term genocide. It is embedded in the very meaning of the phrase "Stolen Generations".
Bringing Them Home found indigenous children were forcibly removed from their homes so they could be raised separately from and ignorant of their culture and people. The ultimate purpose, it claimed, was to end the existence of the Aborigines as a distinct people.
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.'
3. The Stolen Generations suffered serious harm
The Bringing Them Home report notes that from 1910 until the 1970s, about 100,000 children were taken from their parents under state and federal laws based on the premise that Aborigines were dying out and that resettling the children was desirable.
It has been hotly debated whether the intent of such policies and practices was to benefit the children or simply hasten the disappearance of their race. Either way, it is demonstrable that the effect of these policies was to seriously harm many thousands of Aboriginal children and their families.
The 1997 Bringing Them Home report found that the forced removal of Aboriginal and Torres Strait Islander children from their families and communities has had life-long and profoundly disabling consequences for those taken and has negatively affected the Indigenous community.
For many of the children, removal meant that they lost all connection to family, traditional land, culture and language. One of those children removed from his family whose adult evidence was cited in the Bringing Them Home Report stated, 'It never goes away. Just 'cause we're not walking around on crutches or with bandages or plasters on our legs and arms, doesn't mean we're not hurting. Just 'cause you can't see it doesn't mean ... I suspect I'll carry these sorts of wounds 'til I the day I die. I'd just like it to be not quite as intense, that's all.'
As Kevin Rudd noted in his apology, this policy of removal is not something from the distant past. Children were being inappropriately removed from their families by Australian authorities until the 1970s. Many people affected by the tragedy of the stolen generations are still alive today and living with its effects.
Michael Mansell, the Legal Director of the Tasmanian Aboriginal Centre, has stated, 'To allow us all to move beyond dealing with the Stolen Generations ... we have to deal with the consequences that the victims had to suffer and I think the only way to do that is to pay compensation.'
4. Other injured groups or individuals are given compensation
It has been noted that other members of the community such as victims of crime or asbestos victims who have been harmed are eligible to draw on a compensation fund. Members of the Stolen Generations should have the same option open to them.
Stolen Generations Victoria believes a federal compensation fund is needed. The Chair of Stolen Generations Victoria, Lyn Austin, has called on victims to consider suing the government if it failed to establish a compensation fund.
'You are looking at the gross violation and the act of genocide and all the inhumane things that have happened to our people,' Ms Austin said. 'We are actually thinking that ourselves, myself and another five siblings that were adopted into a family, are considering a class action.'
Ms Austin went on to say, 'I do believe the stolen generations people should be compensated and it's the people's choice if they want to do a class action or an individual case ... there should be a compensation fund set up ...
People get compensation as victims of crimes, prisoners get compensation for some unjust treatment in the prison system or I could walk out in the street and fall over and I could sue the council for injuries ... why not the stolen generations for the past injustices that were done?'
5. Tasmania has established a compensation scheme for the Stolen Generations
Those who support the establishment of a national compensation fund for members of the Stolen Generations note that such a fund has already been established by the Tasmanian Government.
During the 2006 State Election campaign, the Premier Paul Lennon committed a re-elected Labor Government to working with the Tasmanian Aboriginal community to address the painful legacy of the Stolen Generations.
In November 2006, both Houses of Tasmania's Parliament unanimously passed into law the Stolen Generations of Aboriginal Children Act 2006.
Tasmania is the first jurisdiction in Australia to commit to providing monetary compensation to members of the Stolen Generations.
Under the provisions of the Stolen Generations of Aboriginal Children Act, a $5 million fund was established from which ex-gratia payments could be made to Aborigines who were forcibly removed from their families as children.
Applications under the Act closed on 15 July 2007. A total of 151 applications were received, including 32 from interstate and one from overseas.
Former Premier, the Hon Ray Groom, was appointed as the Stolen Generations Assessor in December 2007 to review applications. The Assessor found 84 people who were removed from their families as children eligible for payments. A further 22 applications were approved for children of Stolen Generations victims.
Of the $5 million in the fund made available by the State Government, $100,000 was allocated to children of members of the Stolen Generations. The remainder of the pool is being split equally among the successful applicants.
The Tasmanian premier, Paul Lennon is keen for the federal Government to establish a scheme similar to Tasmania's. Mr Lennon has stated, 'Ultimately, it's a matter for Kevin [Rudd] to decide what the national response should be, but I hope that he looks at Tasmania, and sees what we've been able to achieve here.'
6. The cost of such a compensation scheme would not be prohibitive
It has been indicated that a properly administered compensation fund would not be prohibitively expensive.
Michael Mansell, the Legal Director of the Tasmanian Aboriginal Centre, has stated that a billion dollars should be sufficient to fund such a compensation scheme.
In August 2001, at the 'Moving forward: achieving reparations for the stolen generations conference in Sydney', former South African Truth and Reconciliation commissioner, Mr Dumisa Ntsebeza, warned that the stolen generations issue will be 'like toxic waste' to the Government unless it changes its policies and allowed compensation. Mr Philip Ruddock, the then Federal Minister for Immigration and Aboriginal and Torres Strait Islander Affairs, told the conference that a reparations tribunal was neither practical nor feasible and that it would cost $3.9 billion.
However at the last election the federal Government committed to $30 billion in tax cuts, while by January 2005 the Howard Government had pledged $1 billion in foreign aid toward tsunami relief. In this context, it has been argued, the sum of one billion dollars or even $3.9 billion appears affordable.
The scheme could have similar safeguards to that which operates within Tasmania. Payments per applicant could be capped at a particular level and there could be a timeframe set within which applications for compensation would have to be made.
Mr Dodson, the former chairman of the Council for Aboriginal Reconciliation, said anyone treated badly under the law deserved to pursue recompense.
Mr Dodson has claimed, 'There is an exaggerated anxiety that there will be an avalanche of demands for monetary compensation.
Even if the courts said there was a case for compensation would the scale cripple our economic future?
Any group of people who have been treated badly under laws made legitimately by the crown deserve to pursue compensation judicially, legally or politically and they deserve our support...
But let us do it in a considered and negotiated manner as part of a careful constructed process aimed at building an Australian nation that recognises and respects Aboriginal history, culture, language and society.'
It has further been noted that such a negotiated compensation fund is likely to prove less expensive than defending large numbers of individual suits brought by individual members of the Stolen Generations.
By the end of 2000 it had cost the federal Government some $12 million to successfully fight the Cubillo-Gunner stolen generations test case. Maurie Ryan-Japarte, of the Stolen Generations Corporation stressed this and then went to note that there were still some 650 litigants to go. Supporters of a compensation fund claim that it would be cheaper to establish and run than successfully contesting claimants' suits in court.