February 13, 2008
The Australian government has made a formal apology for the past wrongs caused by successive governments on the indigenous Aboriginal population. Prime Minister Kevin Rudd apologised in parliament to all Aborigines for laws and policies that "inflicted profound grief, suffering and loss".
Read the complete apology at the BBC
Further reading:
Facing Australia's history: truth and reconciliation for the stolen generations
By Ramona Vijeyarasa *
This article appeared in the last issue of Sur Journal an international journal on human rights published by Sur – Human Rights University Network, 2007.
Abstract
The Tasmanian State Government and the Australian Federal Senate have taken recent steps towards setting up a Reparations Tribunal for Aboriginal and Torres Strait Islander (ATSI) people who were separated from their families and communities under State-based forced removal policies of the 20th Century. This paper proposes a Truth and Reconciliation Commission drawing on international lessons.
Introduction
From 1910 to the early 1980s, somewhere between one in three and one in ten Aboriginal and Torres Strait Islander (ATSI) (1) children in Australia were removed from their families (2). Legislation was passed in the early years of the twentiethcentury which gave Aboriginal protectors guardianship rights over ATSI people up to the age of sixteen or twenty-one, in all states of Australia and the Northern Territory, with the exception of Tasmania, where Aboriginal children were removed under general welfare legislation (3). Subsequently, police officers or other agents of the State began to locate and transfer babies and children of pure-blood or mixed descent, from their mothers, families or communities into government or missionary institutions.
The Australian Federal (then Labor) Government instituted a National Inquiry in 1995 into the Stolen Generations through the Human Rights and Equal Opportunity Commission (HREOC), as pressure swelled from various avenues through the late 1980s and early 1990s. The Federal Government issued its Terms of Reference for the National Inquiry to HREOC on 11 May 1995. The Inquiry was initially aimed at determining how many children were taken away and how this occurred, hearing from ATSI people about how they had been affected and what must be done to compensate and finally, considering whether the policies of removal fell within the definition of genocide in Article II(e) of the United Nations Convention on the Prevention and Punishment of
the Crime of Genocide (4). This was later replaced by four goals: tracing the past laws, practices and policies which resulted in the Stolen Generations; examining the adequacy of and the need for any changes in laws, practices and policies relating to services and procedures currently available to those ATSI persons affected by the Stolen Generations; examining the principles relevant to determining the justification for compensation for persons or communities
affected by separation; and examining current laws, practices and policies with respect to the placement and care of ATSI children, taking into account the principle of self-determination (5).
The achievement of reconciliation required the detailed and extensive implementation of the recommendations outlined in the resulting 1997 report Bringing them home (6), of which sixty thousand copies were sold in the first year of its release (7). Yet, the response of the Australian Federal Government (now Liberal Coalition, which has been re-elected twice since the 1996 National Inquiry, most recently in 2004) announced on 16 December 1997 fell far short of the reparations goals outlined in the van Boven principles (8). Van Boven found that under international law, the violation of any human right gives rise to a right to reparations for the victim and that particular attention must be paid to gross violations of human rights, which includes genocide, systematic discrimination and the forcible transfer of populations (9).
The National Inquiry has been described as an example of a “historical truth commission” involving an historical inquiry into past government practices (10). Yet, the ongoing continual removal of ATSI children to date (11), and the failure of the Australian Government to recognize the correlation between the sexual abuse experienced by members of the Stolen Generations and presentday sexual abuse that is rife in many indigenous communities, highlights the need for a Truth and Reconciliation Commission that acknowledges both past and present patterns of abuse (12). The Australian Government, which has thus far refused to publicly apologize to the members of the Stolen Generations, has rejected the proposal for a Reparations Tribunal. Instead, it has left incremental efforts by the Tasmanian State Government in 2006 and the Australian Democrats in the Federal Senate in March 2007 to establish either a state-based or a national compensation program, a cursory paper-based solution with monetary compensation awarded for claims assessed by a Stolen Generations Assessor.
Despite the National Inquiry giving the ATSI people a voice, and Bringing them home creating the path for reconciliation, the opportunity was wasted. Ten years on, the Australian nation has still not moved forward and beyond its history of genocide and exploitation. This paper proposes, as the best model to address the historical wrongs perpetrated against members of the Stolen Generations, a Truth and Reconciliation Commission, with an attached Reparations Program. The Truth and Reconciliation Commission will build upon the work of past and existing inquiries, including Bringing them home, whilst incorporating into its mandate a requirement to report on the implementation of recommendations at regular intervals after the completion of hearings. At the same time, the proposed Truth and Reconciliation Commission will incorporate culturally appropriate mechanisms to allow truth-telling and healing for ATSI victims, including special recognition of the difficulties for mothers and stolen children who were the victims of sexual abuse to tell of their suffering in the environments previously offered by the National Inquiry.
Today, a Truth and Reconciliation Commission will help facilitate this healing through truth-telling as well as enhanced public awareness of the experiences and consequences of “forced” removal. Therapeutic for both the Australian nation as well as individual victims, conducting hearings in each State or Territory, in a localised setting, with indigenous and non-indigenous Commissioners, will also require the involvement, and acceptance of responsibility by each state government. This process will also best facilitate recognition of the heterogeneity of each ATSI person’s experiences, the different ATSI clans living in the different states of Australia and the numerous languages spoken by former or present inhabitants of a particular state.
The success of such a decentralised model sitting under the umbrella of the Federal Government is premised on an apology being made by the Australian Federal Government towards all of those persons affected by the forcible removal policies of the 20th Century. The involvement of State Governments is additionally essential given their fundamental relationship to service delivery, carrying the prime responsibility for education, health services as well as law and order today.
The likelihood of success of this model can be assessed in accordance with the progress of the truth-seeking process presently being undertaken by the Canadian Government. In Canada, a package has been designed for the survivors of the Indian Residential Schools (IRS) to address the injustices of the policy of assimilation, forcible removal and cultural dilution, enforced by the Canadian Government, Anglican, United Presbyterian and Catholic Churches, for more than 100 years, most extensively from the 1920s to 1960s, during which time widespread sexual abuse occurred (13). Whilst this proposed model to address the harms suffered by ATSI persons differs from the Canadian Truth and Reconciliation Commission, the similarities of the experiences of indigenous Australians and Canadians provide Australia with a valuable learning opportunity. Bringing them home raised the issue of responsibility, which has since largely been neglected. A Truth and Reconciliation Commission as proposed in this paper will once again provide an opportunity for developing a collective memory and shared national history, and create the renewed vigour for the full achievement of reparations and the principles of reconciliation.
>>Read the complete article in PDF format
* Ramona Vijeyarasa was a NYU Human Rights and International Law Fellow at The Center for Transitional Justice. An Australian lawyer, Ramona has extensive experience in the field of international human rights, including at the Coalition Against Trafficking in Women in Manila,The Philippines, and the Center for Reproductive Rights in New York.
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Footnotes
(1) Australia officially has two groups of indigenous people who are referred to as Aboriginal and Torres Strait Islander people. For the purpose of this paper, the acronym ATSI has been applied. See Australian Federal Government, Department of Aboriginal and Torres Strait Islander Affairs, Indigenous Fact Sheet (PDF), accessed on 14 June 2007.
(2) Human Rights and Equal Opportunity Commission, Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Islander child, Canberra, AGPS, 1997, p. 31[Hereinafter Bringing them home], available here, accessed on 20 January 2007.
(3) A summary of all “removal” and general welfare legislation can be found in Bringing them home, note 2, pp. 600-648.
(4) Nigel D’Souza, “Authors of our own history: the challenge for all Australians presented by the final report of the human rights commission national inquiry into the separation of aboriginal and torres strait islander children from their families forum-the stolen generation: from removal to reconciliation-authors of our own history”, University of New South Wales Law Journal, v. 21, 1998, pp. 204-205 citing media release issued by SNAICC on 4 August 1991, National Aboriginal and Islander Children’s Day.
(5) Bringing them home, note 2, pp. 2-3.
(6) Ibid., which cites throughout to the range of evidence heard by the National Inquiry.
(7) Anne Orford, “Commissioning the truth”, Columbia Journal of Gender and Law, v. 15, 2006, p. 867.
(8) In 1989, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Theo van Boven with the task of undertaking a study concerning the right to restitution, compensation, rehabilitation for victims of gross violations of human rights and fundamental freedoms, taking into account relevant existing international human rights norm and relevant decisions and views of international human rights organs. See Theo van Boven, Final Report of the Special Rapporteur of the United Nations, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, UN Doc. E/CN.4/Sub.2/1993/8 (1993).
(9) Van Boven, Final Report of the Special Rapporteur of the United Nations, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, UN Doc. E/CN.4/Sub.2/1993/8 (1993), p. 4.
(10) Priscilla Hayner, Unspeakable truths: facing the challenges of truth commissioners Routledge, New York and London, 2002, pp. 17-18, 313.
(11) See Bringing them home, note 2, p.15, regarding contemporary removals of ATSI children until
the release of the report in 1997, such as non-custodial sentences applied to indigenous people.
(12) See discussion of inter-generational transfer of the effects of forcible removal discussed in Bringing them home, note 2, pp.174-175, 188-189 and 481-483. See also research on the association of past unresolved trauma experienced over many generations of ATSI people with present-day child sexual abuse in indigenous communities in Janet Stanley, “Child Sexual Abuse in Indigenous Communities”, paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference, convened by the Australian Institute of Criminology and held in Adelaide, 1-2 May 2003, available here (PDF), accessed on 26 August 2007.
(13) See International Center for Transitional Justice (ICTJ), “Canada-Background”, March 2007,
available here, accessed on 14 June 2007. See also Canadian Indian Residential Schools Settlement Agreement, Schedule N: Mandate for the Truth and Reconciliation Commission, 8 May 2006, [Hereinafter IRS Settlement Agreement], 5, §4(c), available here, accessed on 14 June 2007.
