• Robin Banks

13 November 2009For most members of the Stolen Generations, pursuing a civil claim through the courts is technically impossible or simply too painful, writes Robin Banks

THE PRIME MINISTER’s apology to the Stolen Generations in February 2008 created a renewed optimism for many Aboriginal and Torres Strait Islander people as well as for many organisations that work with Aboriginal or Torres Strait Islander communities, no matter what their focus.

All Australian parliaments have now made formal apologies to the Stolen Generations. This is an important first step, yet apologies are only one aspect of the reparations recommended in the Australian Human Rights Commission’s watershed Bringing Them Home report. Other essential features of reparation are guarantees against repetition, measures of restitution and rehabilitation, and monetary compensation.

This month, the Public Interest Advocacy Centre (PIAC) launches a revised edition of Restoring Identity, the final report of the Moving Forward national consultation project conducted in 2002, which sought the opinions of Aboriginal and Torres Strait Island people about PIAC’s proposal for a Stolen Generations Reparations Tribunal. The report outlines the views of those Aboriginal and Torres Strait Islander people about reparations and presents the Reparations Tribunal model developed from the consultation project.

In designing its proposal, PIAC drew upon its own experience representing members of the Stolen Generations. The belated success of the late Bruce Trevorrow in his civil claim against the South Australian government was a significant step forward for members of the Stolen Generations.

However, the South Australian government’s subsequent appeal of the decision highlights the continual challenges that members of the Stolen Generations face when seeking redress through the courts.

Most members of the Stolen Generations will find that a successful pursuit of a civil claim through the courts is technically impossible, or simply too painful. Amassing sufficient evidence is difficult. The time that has elapsed since removals occurred means that many witnesses are no longer available.

Plaintiffs face an inherent disadvantage because relevant documentation is, and always has been, controlled by governments and institutions. In most cases, the documents necessary to support a successful claim in court were never created or have not survived. Plaintiffs must also endure hostile cross-examination and intense scrutiny of their private lives and those of their families, including health and social problems that they have suffered as a result of their removal.

Another recent landmark was the Tasmanian government’s ex gratia payments to members of the Stolen Generations. The positive public reaction to the Tasmanian scheme demonstrates that there is widespread support for further measures of reparation.

The experiences of indigenous peoples fighting for justice in other countries continue to provide important and useful guidance for Australia. In Canada, implementation of the Indian Residential Schools Settlement Agreement has ended many years of litigation, including thousands of individual claims and several class actions. The agreement provides a truly comprehensive package of reparations for former residential school students, whose experiences were in many ways similar to those of the Stolen Generations. Implementation of the settlement began in late 2007 and already more than 65,000 former students have received common experience payments. A process to provide additional payments of up to $275,000 for people who experienced physical or sexual abuse or serious psychological harm is now beginning.

The prime minister’s apology recognised the terrible injustice perpetrated against the Stolen Generations and to their families and communities. As long as members of the Stolen Generations are denied reparations while governments spend millions of dollars defending Stolen Generations litigation, the injustice continues. PIAC’s hope is that Australia can learn from the Canadian experience and avoid the harm to claimants and to the broader community, and the waste of public money that accompanies litigation.

PIAC’s Reparations Tribunal model provides a way to do this by providing a comprehensive response to the needs of all members of the Stolen Generations, their families and communities.

In releasing this revised edition of Restoring Identity, PIAC seeks to encourage consideration by all governments and by the community of a different and more responsive and responsible way forward in acknowledging the experience of the Stolen Generations. •

Robin Banks is the Chief Executive Officer of the Public Interest Advocacy Centre (PIAC). Restoring Identity will be launched in Sydney on 20 November 2009. The report can be downloaded after that date from PIAC.

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