Australia: The Stolen Generations group action: an alternative model to redress a traumatic past

Last Updated: 1 September 2017
Article by Hayley Aldrich

'First appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 141, published in August 2017 (Sydney, Australia, ISSN 1449-7719), pp22-26. It has been reproduced with the kind permission of the author and the ALA. For more information about the ALA, please go to: www.lawyersalliance.com.au.'

Previously, many attempts had been made to claim damages by or on behalf of members of the Stolen Generations. These were largely unsuccessful. Trying to resolve claims such as these within the usual guidelines of litigation would not work. A process was negotiated with the Crown Solicitors, culminating in the agreement to a 'group action'. Each member of the action would have their cases run individually.

Who are the Stolen Generations?

Nationally, there remains controversy regarding who can claim to be a member of the Stolen Generations. Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, published in April 1997, was a pivotal moment in Australian history. The report publicised statements from many Indigenous people who had been removed from their families as children, as a result of government policies.

Some Indigenous communities claim that to be classified as a member of the Stolen Generations in NSW, you need to have been taken from your family under the Aborigines Protection Act 1909 (NSW), and its many amending Acts. This Act established the Aborigines Protection Board, which became the Aborigines Welfare Board (the Board). That same Act also established the two main Indigenous homes in NSW – Cootamundra Girls Home and Kinchela Boys Home in Kempsey. These homes were established by the Act, and were run by employees of the Board.

The Board was given the power to remove Indigenous children from their parents, after 'charging' them as being 'neglected' under s13A, and making the child a ward of the State.

The Board and its officers determined what 'unfit to retain', 'neglected' and 'under improper guardianship' meant. For instance, in some circumstances it was said that a child was neglected if the family did not have a large enough home, or was under improper guardianship if she or he was residing with family members who had been baptised in a different religious faith.

In some circumstances, children were admitted by their families to the care of the Board. It is clear from surviving correspondence that many parents were under the impression that they could easily apply to have their children returned to them. However, in many instances this was not the case, with the Board determining that the family situation was not suitable, and declining to return the child until it deemed the family situation to have improved.

Over the years, the NSW government also utilised other statutory instruments to remove Indigenous children from their families.

The Child Welfare Act 1939 (and its amending Acts) became another instrument for the government at the time to continue its Stolen Generations policy of assimilation by removing children from their families, irrevocably damaging family and cultural ties. In some circumstances, Indigenous children were made wards of the State by a court order that utilised both Acts. For instance, children could be removed under the Child Welfare Act, to be 'committed to the care of the state of New South Wales, to be dealt with as a ward committed to the control of the Aborigines Welfare Board and/or the Child Welfare Department'.

As this Act was not specifically drafted to remove Indigenous children only, contention exists as to whether or not those removed under this particular legislation have the right to claim to be Stolen Generations.

Carroll & O'Dea Lawyers has worked very hard to have the Crown accept liability for those of its clients who were taken under this second Act. These claims continue to be assessed on a case-by-case basis. Some have been able to be settled successfully.

The process

Over the years, and in different Australian jurisdictions, there have been many attempts made by individuals to claim damages through legal mechanisms for pain and suffering caused by being removed from their families. To date, the only case that went to a full hearing and was successful was Trevorrow v State of South Australia.1 However, this matter is not a suitable 'test case' for other Stolen Generations claims, due to the very specific, unique circumstances involved. In that case, Mr Trevorrow was voluntarily admitted to hospital by his parents at the age of 13 months. The Aborigines Protection Board made allegations of neglect, an alcoholic father and an absent mother – all later found to be untrue. A particular Welfare Officer refused to tell his parents where he was or allow them to see him until he was finally returned to his mother, 10 years later.

As with any litigation process, a number of obstacles arise. In each of these types of cases, the plaintiffs would be faced with a combination, or indeed all of, the Statute of Limitations, 'standard of time' defence, historical legislation, lost or damaged historical records, fading memories, and the possibility of being re-traumatised by the adversarial court process itself. Additionally, while we may look back and view the legislation of the past as racist in nature, in the event that proceedings are commenced, a court would not be able to rule on the act of removal as at the time such removals were authorised by law.

It was these barriers which necessitated negotiations of a new type of alternative dispute process.

On 23 June 2014, an unfiled Statement of Claim was served by Carroll & O'Dea Lawyers on the Crown Solicitors Office. The matter was pleaded as a representative proceeding pursuant to part 10 of the Civil Procedure Act 2005, naming a lead plaintiff and a defined group of members who had been, on or before 31 December 1969, committed to Bomaderry Children's Home, Cootamundra Aboriginal Girls' Training Home and Kinchela Aboriginal Boys' Training Home. After 31 December 1969, the guardianship of any children who had been wards of the Aborigines Welfare Board was transferred to 'state control', usually defined as under the care of the then Child Welfare Department.

In the past year, claims have also been progressed for claimants who were placed in other state-run institutions prior to 31 December 1969.

In response to the draft Statement of Claim, the Crown Solicitors Office asked for a signed statement to be prepared and served for each claimant, which needed to address the claimant's history, details of psychological impact, whether anyone had previously been prosecuted, if any previous compensation had been received, and an acknowledgement that the statement was true and correct to the best of our client's knowledge and belief.

Carroll & O'Dea receives instructions from claimants regarding these evidentiary statements. Claimants recount memories of life before they were taken; the experience of being taken itself; their memories of the institutions and any foster homes; their employment, relationship and medical history; and, finally, the lasting impact of these experiences that they believe is still continuing today.

Taking such evidentiary statements can be arduous and draining for the lawyers as well as the clients. They can be very emotional, and contain horrific details. The statements are comprehensive and are not restrained by the usual 'rules of evidence', such as those that would be required in a statutory declaration or an affidavit.

Each statement is then finessed and supplemented with any historical documents that are available. When relevant, additional evidence, including medical evidence and evidence of any relevant criminal proceedings, is also obtained.

The majority of the claimants suffer from some form of psychological injury due to their removal and subsequent treatment. After months of negotiations, for the purposes of this process only, the Crown agreed to accept, without the need for medico-legal assessments, that each claimant suffered some form of psychological injury.

In certain individual cases, Points of Claim are drafted and served, specifying the Crown's liability and additional arguments relied upon.

After the statement and any additional evidence are served, the parties hold an informal settlement conference. Usually it is arranged to reserve a 'block' period of a few weeks in which the required government representatives make themselves available to hear various individual matters. For instance, the last block period of conferences was held in March this year, in which 21 matters were settled.

The settlement conference consists of approximately five to six representatives of the government from different departments, including an Indigenous representative. Carroll & O'Dea is assisted by an experienced barrister who leads our clients through their statements again, and family members or support people who are also able to provide statements. There is no cross-examination. Claimants are treated with respect and dignity at all times. Claimants then receive a personal apology on behalf of the NSW government.

We then engage in the negotiations for financial compensation, taking into account each individual's circumstances.

From July 2015 to date, 174 matters have been resolved.

The process has been able to succeed due to the co-operation between Carroll & O'Dea Lawyers and the Crown Solicitors Office, the various governmental departments and their employees, and the support provided by community organisations, including the Stolen Generations Council, the Coota Girls Aboriginal Corporation and the Kinchela Boys Home Aboriginal Corporation.

The benefits

The matters are legally resolved without the usual requirements of costly and often time-consuming medicolegal and expert evidence. The process also enables matters to be resolved without the need to proceed through the court system.

Both parties agree that a key advantage is that none of the claimants are re-traumatised by the experience of having to disclose painful memories. In the cases of alleged sexual and severe physical abuse, counselling is offered as part of the settlement, in addition to financial compensation. The entire system is one that is supportive and non-contentious.

Perhaps most important are the benefits of a personal nature. In many circumstances, claimants have never told their partners or children about the abuses they suffered. The settlement conference is often the first time that family members hear these stories. This can make for a very emotional day. Claimants being able to talk to their families about secrets they've held for years is one of the many positive impacts to have emerged from this process. Many claimants stated that they have found the conference to be an important part of their broader healing process, and that the whole experience is something that will change their lives for the better.

Additional Reparations in NSW for Stolen Generations

In 2015, the Parliament of NSW instigated an Inquiry into Reparations for the Stolen Generations in NSW, focusing on considering the implementation of the NSW government's response to the Bringing Them Home report.

The Inquiry heard submissions from the Indigenous communities and also various government representatives who had knowledge of the process that had been established with the current group action.

In the report, tabled in June 2016, the General Purpose Standing Committee No. 3 (the Committee) acknowledged that the NSW current group action was ongoing, and that the response by the state had been mostly positive. However, the Committee also found that NSW still has much progress to make in delivering Stolen Generation survivors the reparations they desperately need and deserve, by drafting 35 recommendations to be considered by the government.2 One of the key recommendations was the establishment of a reparations scheme that would 'complement the current group action involving Stolen Generations survivors'.3

On 2 December 2016, the Hon Leslie Williams MP, Minister for Aboriginal Affairs, submitted the NSW government response to the Inquiry. The government accepted the vast majority of the Committee's recommendations, and announced a $73.8 million package offering up to $75,000 for 'those removed by the Aborigines Welfare Board up until the time the Board was repealed in 1969'.4 However, to date no such measures have been announced regarding those claimants removed by other government departments, such as the Child Welfare Department.

It is understood that those claimants who have already had their matters settled through the group action will be able to have their applications for the reparations scheme fast tracked, as the government has essentially already considered their individual case and is aware of the circumstances.

Thus, NSW is the only state within Australia where members of the Stolen Generations have been able to proceed with claims through both a reparations scheme and the common law, via the current group action.

Reparations within Australia

The recently proposed NSW reparations scheme for compensating the victims of removal policies is similar to other such programs set up in Tasmania and South Australia. Tasmania was the first state in Australia to establish a Stolen Generations reparations scheme, in 2006. The total awarded to 106 people amounted to $5 million, split between claimants, with the amount awarded being dependent on whether they were primary victims or descendants.5

In South Australia, after eight years of negotiations, an agreed scheme was established in late 2015. A limit of $11 million was set, with only $6 million set aside to be awarded as ex-gratia payments to those who were removed. The deadline for applications recently closed, and at least 250 individual applications have been made.6

While it is clear that some states are trying to correct the past injustices of their governments within their limited resources, the silence on the part of the federal government is deafening.

On 13 February 2008, then Prime Minister Kevin Rudd made a formal apology to the Stolen Generations at a sitting of the Parliament of Australia, something that the previous Prime Minister, John Howard, had been criticised for failing to do. However, Prime Minister Rudd made it clear that the federal government would not '...under any circumstances, be establishing any compensation arrangements or any compensation fund'.7

Subsequent federal governments have maintained this approach.

While it is true that the states enacted their own legislation and established their own child-removing policies, past federal governments were not immune to the practice.

This is especially so when looking at the history of those removed from their families in the Northern Territory.

On 1 January 1911, the control of the Northern Territory was transferred from South Australia to the Commonwealth. From that date onwards, the legislation of the Northern Territory was enacted and carried out by the federal government – this included the Aboriginal Ordinance 1918 (Cth), which continued the established practice of the Chief Protector of the Territory as the legal guardian over every Indigenous child. The legislation was amended and repealed by numerous other Acts over time.8

To date, the Commonwealth has declined to accept formal responsibility for removing Indigenous children from their families in the Northern Territory. This means that, at present, members of the Stolen Generations in the Northern Territory do not have the opportunity to access compensation, as their counterparts in NSW, South Australia and Tasmania have.

The actions of the Commonwealth are in stark contrast to those of Canada, another country whose government historically removed Indigenous children from their families, placing them in Indian (Aboriginal) Residential Schools, which were funded by the Department of Indian Affairs and Northern Development.

The Canadian government first made a Statement of Reconciliation in 1998. Since then, a number of different compensation packages have been established. The Aboriginal Healing Foundation was created in 1998 with an initial grant of CAD$350 million. The foundation closed in September 2014.

A personal compensation package was announced in 2005, with CAD$1.9 billion set aside.[9] Part of this package saw further funding provided to the Aboriginal Healing Foundation, as well as personal compensation paid to claimants, dependent on how many years they spent in care. Part of that package included the opportunity of having claims for sexual, physical and emotional abuses assessed on a case-by-case basis through an alternative dispute resolution process.10

In 2008, the then Prime Minister, Stephen Harper, apologised on behalf of the federal government.

In February 2017, the Ontario Supreme Court ruled that the federal government had breached its duty to take reasonable steps to prevent children from losing their Aboriginal identity. The Canadian government responded by stating that it would discuss a settlement in respect to this aspect of removal also.11

When compared with the actions of the Canadian government to resolve historical and inter-generational wrongs, it is clear that the Australian government's efforts are inadequate.

The model established by Carroll & O'Dea Lawyers and the NSW state government is one that could be adapted by the federal government. Carroll & O'Dea Lawyers was recently approached by a Northern Territory Stolen Generations Community Organisation to investigate the potential of such a process.

Footnotes

1 (2007) SASC 285.

2 New South Wales Parliament Legislative Council, General Purpose Standing Committee No. 3 Reparations for the Stolen Generations in New South Wales – 'Unfinished Business', [Sydney, NSW] ordered to be printed 23 June 2016.

3 Ibid, xxi.

4 NSW Government, Unfinished Business: NSW Government Response to the General Purpose Standing Committee 3 Report into Reparations for the Stolen Generations, submitted to Parliament 2 December 2016.

5 Joel Gibson, 'Tasmania pays $5m to stolen generations' The Sydney Morning Herald (online), 23 January 2008, < HTTP://WWW.SMH.COM.AU/NEWS/NATIONAL/TASMANIA-PAYS-5M-TOSTOLEN- GENERATIONS/2008/01/22/1200764264522.HTML >.

6 'Reparation fund sees 250 applications from Stolen Generations members in South Australia', ABC News (online), 1 February 2017, < HTTP://WWW.ABC.NET.AU/NEWS/2017-02-01/REPARATION-FUND-SEES-250-APPLICATIONSFROM-STOLEN-GENERATIONS/8228128 >.

7 Michelle Grattan and Tony Wright, 'Rudd rules out compensation', The Age (online), 2 February 2008, < HTTP://WWW.THEAGE.COM.AU/NEWS/NATIONAL/RUDD-RULES-OUT-COM
pensation/2008/02/01/1201801035355.html >.

8 Australian Human Rights Commission, 'Laws applying specifically to Aboriginal children' on Bringing Them Home < HTTPS://WWW.HUMANRIGHTS.GOV.AU/PUBLICATIONS/BRINGING-THEM-HOMEAPPENDIX-7 >.

9 'School abuse victims getting $1.9B', CBC News Canada (online), 23 November 2005, < HTTP://WWW.CBC.CA/NEWS/CANADA/SCHOOL-ABUSEVICTIMS-GETTING-1-9B-1.540142 >.

10 Indian Residential Schools Adjudication Secretariat, 'Who we are and what we do' < HTTP://WWW.IAP-PEI.CA/US-NOUS/US-NOUS-ENG.PHP >.

11 Annabelle Quince, 'Canada's Stolen Generations: the legacy of residential schools', Radio National (online), 7 July 2015 < HTTP://WWW.ABC.NET.AU/RADIONATIONAL/PROGRAMS/REARVISION/CANADA%E2%80%99S-STOLENGENERATIONS/6598518 >.

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