Right: Compensation claimant Lorna Cubillo (pictured with another "stolen child", Jimmy Anderson). In 2000, Ms Cubillo and another Northern Territory Aborigine, Peter Gunner, lost their cases for compensation in the Federal Court. The court did not deny the existence of "Stolen Generations", nor the reality of the suffering of children and their parents. However, the court decided that there was no proof that laws, as they existed at the time, were broken. The decision was appealed, but the court's decision was upheld.
Further implications
The Law Commission of Canada specifies the following as necessary elements of a meaningful apology:acknowledgement of the wrong done;
accepting responsibility for the wrong that was done;
the expression of sincere regret or remorse;
assurance that the wrong will not recur; and,
reparation through concrete measures.
According to this set of criteria the Rudd Government's apology was appropriate on all levels except the final 'reparation through concrete measures'. The Rudd Government appears to see its pledge to enact a series of positive measures to redress Aboriginal disadvantage as a substitute for specific reparation for surviving members of the Stolen Generation and their children.
The difficulty with such a stance is that supplying vital services to all Aboriginal people is not a replacement for whatever compensation members of the Stolen Generations might be entitled to as a result of their removal from their families.
It is arguable that the Government has a responsibility to assist any section of the Australian community to achieve decent standards of education, health and housing. The obligation that relevant governments have to compensate members of the Stolen Generations grows specifically out of the mistreatment they have received. In the same way that compensation is offered to those who are injured at work or who are victims of crime.
No one would argue that the fact that other Australians have access to appropriate housing, schools and health services means they are ineligible for any form of compensation.
With regard to whether a compensation fund should be set up it has been noted that in the interests of equity this may be appropriate. Many Aboriginal people are likely to be intimidated by the legal system and so would be reluctant to sue the relevant state or territory government to establish their right to compensation. They may also fear that should they lose their case they would have to meet their legal costs.
A tribunal system with a compensation fund would greatly facilitate the largest number of eligible people being able to access compensation.
A number of Aboriginal spokespeople, including Michael Mansell and Pat Dodson, appear to believe that, despite its statement that it will not establish a compensation fund, the Rudd Government will ultimately make direct financial reparations to those harmed. It remains to be seen whether this confidence will prove to be misplaced.